State Legislative Trends in 2010: Abortion Restrictions Once Again Dominate
Even as state legislators were largely preoccupied by ongoing budget crises in 2010, issues related to reproductive health and rights nonetheless garnered significant legislative attention.
Even as state legislators were largely preoccupied by ongoing budget crises in 2010, issues related to reproductive health and rights nonetheless garnered significant legislative attention. More than 950 such measures were introduced in the District of Columbia and the 44 states in which the legislatures convened.
By year’s end, 89 new laws had been enacted in 32 states and DC. (This is an increase from the 77 laws enacted in 2009 and the 33 statutes enacted in 2008.) As always, abortion received the lion’s share of the legislative attention, accounting for 39 of the 89 new laws. While the new abortion laws are overwhelmingly restrictive, the reinstatement of public funding for abortion in DC (permitted by federal law for the first time in almost three decades) is a notable exception.
States were also able to take some significant steps to promote reproductive health in other areas, however, by mandating that sex education be comprehensive and medically accurate; requiring coverage of contraception in health insurance plans; and allowing a health care provider to prescribe treatment for a patient’s partner for STIs.
Abortion
Over the course of the year, 15 states enacted 39 laws related to abortion. The most high-profile abortion-related debate in 2010 came as the result of the passage of the federal health care reform legislation in March, the peak of the state legislative year. By year’s end, legislators in 14 states had introduced measures relating to insurance coverage of abortion in the exchanges that will be established as a result of health care reform; new laws were enacted in five states and vetoed in Florida and Oklahoma.
Laws enacted in Arizona, Mississippi and Missouri limit abortion coverage to extremely rare cases, such as life endangerment, severe health impairment, rape or incest; the laws enacted in Louisiana and Tennessee prohibit coverage of abortion altogether (see Restricting Insurance Coverage of Abortion). The Missouri law, which prohibits abortion coverage except in cases of life endangerment, applies to all insurance policies written in the state, whether or not they are offered through an exchange; four other states have similar blanket restrictions. Arizona, meanwhile, moved to restrict the insurance coverage for abortion offered to state employees to cases where the woman’s life is endangered or her health threatened, bringing to 12 the number of states limiting coverage for public employees.
In a groundbreaking move, Nebraska used largely scientifically suspect claims about the ability of a fetus to feel pain to justify legislation banning abortion after 20 weeks’ gestation, except in cases of life endangerment or when necessary to “avert substantial and irreversible impairment of a major bodily function.” Although the law conflicts with several Supreme Court rulings that abortion must be permitted until viability (which generally occurs between 24 and 26 weeks’ gestation), the measure has not been challenged and is in effect. Moreover, the law is serving as a model for legislative action in other states. Including Nebraska, 38 states restrict later-term abortions (see Policies on Later-Term Abortion).
In another attempt to ban abortion, antichoice activists in Colorado put an initiative on the ballot that would have defined a fetus, for purposes of Colorado law, as a “human being from the moment of conception.” The measure was soundly rejected by voters in November; it had met the same fate in 2008. Taking different approaches to the same goal of banning at least some abortions, Oklahoma moved to ban abortions for purposes of sex selection and Utah enacted a measure that makes self-inducing an abortion illegal.
In August, the District of Columbia resumed funding abortion services for low-income women. The ability of the District to use its own locally raised revenues had been restricted by Congress since the early 1980s; this prohibition was lifted beginning with fiscal year 2010. The DC policy change brings to 18 the number of jurisdictions that fund abortion services (see State Funding of Abortion Under Medicaid). A measure enacted by Arizona limits funding to cases of life endangerment, rape or incest; the state, however, remains under a court order to fund all or most medically necessary abortions, although it does not appear that eligible procedures are actually being funded.
Three of the 24 states that require a woman seeking an abortion to receive counseling designed to deter her from having the procedure moved to tighten their existing mandates (see Counseling and Waiting Periods for Abortion). A law adopted in Nebraska would have required abortion counselors to inform women that they are at high risk of adverse consequences resulting from an abortion because of their physical, psychological, demographic or situational circumstances; the measure was immediately challenged and never went into effect. Missouri expanded its counseling law to require abortion counseling materials to state that abortion terminates the “life of a separate, unique, living human being;” it also requires that a woman seeking an abortion after 21 weeks’ gestation be told that a fetus can feel pain beginning at 22 weeks’ gestation. Finally, South Carolina expanded the required waiting period between the counseling session and the abortion procedure from one hour to 24 hours.
Six states with existing abortion counseling requirements either instituted or expanded provisions related to ultrasound. Oklahoma brought back a provision that was enacted in 2008, but voided by state court on purely procedural grounds. The law requires that a woman seeking an abortion undergo an ultrasound, receive a verbal description of the image and be shown the monitor; the law does, however, permit her to “avert her eyes” while the image is displayed. The measure, which is stricter than that in effect in any other state, was immediately challenged and enforcement is enjoined. Louisiana, which already required that a woman seeking an abortion undergo an ultrasound, expanded its mandate to require that the woman be given the option to view the image and hear a verbal description. (A separate provision of the Louisiana law that would have required that the woman be given a hard copy of the ultrasound image was struck down in court.) Including the new Louisiana law, five states have ultrasound mandates in effect (see Requirements for Ultrasound). Stopping short of actual mandates, Utah and West Virginia adopted measures requiring women to be given the option to view an ultrasound image if the procedure is performed; Missouri and South Carolina require that women be offered the option to have an ultrasound performed prior to an abortion.
A handful of states took actions related to minors seeking an abortion. In the most high-profile move, voters in Alaska approved a ballot initiative requiring parental notification for a minor seeking an abortion; this brings to 36 the number of states requiring parental involvement (see Parental Involvement in Minors’ Abortions). Two states enacted measures requiring detailed reporting related to a minor’s abortion. New laws in Arizona and Oklahoma require abortion providers to give the state information on the number of minors requesting a judicial bypass and the number of petitions approved by the courts; this brings to 11 the number of states with reporting requirements specific to minors. Both of these states also expanded their overall abortion reporting requirements to include, among other topics, the woman’s reason for obtaining an abortion. Gov. Mark Parkinson (D) vetoed a similar measure in Kansas (see Abortion Reporting Requirements).
Virginia joined Montana and Pennsylvania in authorizing the sale of prochoice license plates; funding generated by the sale of the “Trust Women/Respect Choice” plates will be used to support family planning services in the state. At the other end of the spectrum, Delaware became the 23rd state to authorize the sale of “Choose Life” license plates (see ‘Choose Life’ License Plates). Louisiana, which has offered the license plates for many years, increased the purchase price; the proceeds are earmarked for support of alternatives-to-abortion services. Kansas, Missouri and Pennsylvania also continued state funding for these alternative services.
Three states enacted laws related to abortion facilities. Tennessee and Oklahoma approved measures that require facilities where abortions are performed to post a notice stating that women cannot be coerced into having an abortion and informing them that they can contact a law enforcement agency if they feel that they have been the victim of coercion. Louisiana, meanwhile, authorized the closure of any abortion provider found to be in violation of federal or state law, a stricter standard than under previous law, which had permitted closure only for a “substantial” failure to comply with legal mandates.
Two states adopted other measures related to abortion providers. Louisiana enacted a measure that denies abortion providers who perform “elective” abortions after viability the protections of medical malpractice law, even though state law permits abortions after viability when the woman’s life or health is endangered (see Policies on Later-Term Abortions). The Oklahoma legislature, meanwhile, overrode the governor’s veto to enact a measure that protects health care providers who withhold information from women who might otherwise choose abortion. In a separate measure, Oklahoma also moved to limit the provision of medication abortion only to physicians.
Sex Education
Measures relating to sex education were introduced in 27 state legislatures in 2010, but only one was enacted. The new law in Wisconsin mandates that sex education be taught in schools throughout the state. The law also requires that the education provided be medically accurate and include discussion of both abstinence and contraception. The law makes Wisconsin one of 20 states (plus DC) to mandate sex education; 13 states require that the materials be medically accurate, while 18 states and DC require discussion of contraception (see Sex and HIV Education).
Refusal to Provide Health Services
Over the course of 2010, measures allowing health care providers to refuse to provide reproductive health care were introduced in 14 states and enacted in Idaho and Oklahoma. A new law in Idaho permits health care providers, including pharmacists, to refuse to provide services related to either abortion or contraception, based on a moral, religious or ethical objection. Under the law, an employer, such as a pharmacy, must accommodate an employee’s refusal as long as it does not cause an “undue hardship” for the business.
Including Idaho, 14 states permit providers to refuse to provide contraceptive services (see Refusing to Provide Health Services) A law enacted in Oklahoma expands the group of providers permitted to refuse to participate in services related to abortion to include any health care provider in the state, except in cases of life endangerment.
Pregnancy and Birth
Five states enacted legislation related to pregnancy and birth in 2010. Kansas adopted a measure that requires HIV testing for pregnant women and newborns, unless the mother refuses. Kentucky and Minnesota adopted measures aimed at promoting substance abuse treatment for pregnant women. The Kentucky statute allocates funding for substance abuse prevention and treatment for pregnant women. The measure adopted in Minnesota allows a medical provider to treat a pregnant woman who is using either alcohol or marijuana without having to report her substance use to law enforcement agencies. A new Tennessee statute allows a woman who had a miscarriage to obtain a “certificate of stillbirth” from the state. Tennessee also adopted a law that establishes additional penalties for the murder of a pregnant woman, and Utah adopted a new law that criminalizes a woman’s “intentional or knowing” act that results in a miscarriage.
Contraception and Prevention
Colorado enacted a measure that requires health insurance plans in the state to include coverage of all FDA-approved contraceptive methods. The measure applies to both group and individual plans. Including Colorado, 28 states mandate contraceptive coverage (see Insurance Coverage of Contraceptives).
Four states enacted legislation expanding access to treatment for STIs by permitting health care providers to prescribe medication for a patient’s partner without having to examine the partner. The new law in Maine applies to all STIs. The law in Wisconsin applies to chlamydia, gonorrhea and trichomoniasis, while the laws in Missouri and Rhode Island apply only to chlamydia and gonorrhea treatment. Enactment of these measures brings to 21 the number of states that permit expedited partner treatment (see Expedited Partner Therapy).
Two states reenacted long-standing abortion-related restrictions on state family planning funds (see State Family Planning Funding Restrictions). As a result, Colorado will continue to refuse to allocate state family planning funds to agencies that use their own revenue to provide abortion services, and Michigan will continue to prohibit the use of state funds to provide counseling or referral for abortion. Three other states have some sort of similar funding restriction. In Kansas, meanwhile, the governor vetoed a provision that would have given priority in the competition for state family planning funds to health departments, hospitals and federally qualified health centers, effectively limiting access to Planned Parenthood clinics that provide abortion services.
Environmental Hazards to Reproductive Health
Beginning in 2011, the Guttmacher Institute will be expanding its monitoring of state policy development to include environmental hazards to reproductive health. This expansion of our state effort reflects growing interest in these issues at the state level. Information on state policymaking on these issues will be included in the monthly state update and chart of enacted legislation posted on the State Center on the Guttmacher Web site.
In some cases, state action on these issues is the direct result of adverse reproductive health consequences. For example, several states have moved to ban parabens in cosmetics specifically because of the damage caused by these substances to women who work in nail and hair salons. However, the bulk of state policymaking seeks to limit exposure to substances that can have a wide range of adverse health consequences, including for reproductive health. For that reason, we will monitor policymaking related to eight substances that not only have known adverse reproductive health consequences, but also are likely to have a disproportionate impact on disadvantaged communities: Bisphenol-A (BPA), dioxin, flame retardants, lead, mercury, parabens, pesticides and phthalates. Two of these substances, BPA and mercury, received significant attention in state legislatures in 2010.
BPA, a key component of many low-cost plastics, such as reusable food containers, plastic bottles (including baby bottles) and the lining of aluminum cans, has been associated with serious reproductive health impacts, including an increased risk of miscarriage, decreased sperm quality, abnormal egg and uterus development, and early onset of menarche (see BPA-Free and Beyond: Protecting Reproductive Health from Environmental Toxins). Partly because of these adverse reproductive health impacts, five states (Maryland, New York, Vermont, Washington and Wisconsin) enacted legislation to restrict BPA in 2010.
Mercury, a heavy metal, has been associated with decreased fertility in both men and women, changes in the length of a woman’s menstrual cycle, painful periods and an increased risk of poor birth outcomes, including miscarriage and low birth weight. Mercury exposure can occur during a product’s manufacture or use; it can also result from improper disposal, leading to an excessive risk to individuals in some occupations and to communities located near landfills. During the 2010 legislative sessions, nine states (Illinois, Maine, Maryland, North Carolina, Rhode Island, Tennessee, Vermont, Virginia and Washington) enacted legislation to regulate mercury disposal or require recycling of products containing mercury, in part because of their consequences for reproductive health.