Another Busy Year: State Legislative Trends on Reproductive Health and Abortion in 2009
More than 900 measures on reproductive health and rights were introduced in the states and the District of Columbia in 2009, and by year’s end, 77 new laws had been enacted in 34 states and DC. (This is more than twice the 33 new laws enacted in 20 states in 2008.)
Although state legislatures expended considerable energy in
2009 grappling with the consequences of the economic downturn, they nonetheless
found time to pay significant attention to issues related to reproductive
health and rights. In total, more than 900 such measures were introduced in the states
and the District of Columbia, and by year’s end, 77 new laws had been enacted
in 34 states and DC. (This is more than twice the 33 new laws enacted in 20
states in 2008.) While the new abortion-related laws are overwhelmingly
restrictive, states did take significant steps to promote reproductive health
by mandating that sex education be comprehensive as well as medically accurate,
expanding access to emergency contraception and allowing a healthcare provider
to prescribe treatment for a patient’s partner for STIs.
Abortion
Over the course of the year, 18 states enacted 34 laws
related to abortion. Arizona adopted a massive omnibus measure that essentially
revamps abortion policy in the state. The new law requires in-person counseling
and a waiting period prior to an abortion, tightens restrictions on minors
seeking an abortion and expands the right to refuse to participate in abortion-related
services; most of the provisions are not in effect due to ongoing litigation.
Passage of the measure is widely attributed to the replacement of longtime pro-choice
Gov. (and now Secretary of Homeland Security) Janet Napolitano (D), who had vetoed
similar bills in the past, with antichoice Gov. Jan Brewer (R).
Five states enacted laws mandating counseling and waiting
periods before an abortion can be performed, with four of these states amending
current counseling requirements. A total of 34 states have
a law of this type. Arizona was the only state to move to institute an
entirely new law, adopted as part of its omnibus measure; if implemented, the
law would require that counseling be conducted in person at least 24 hours
prior to an abortion, thereby necessitating that a woman make two trips to the
provider in order to obtain the procedure. (The in-person counseling requirement
is currently blocked pending litigation.)
Seven other states have similar requirements, which have
been shown to pose
significant access barriers for women seeking services. The new law in Utah,
meanwhile, requires that a woman seeking an abortion after 19 weeks’ gestation
be given information on the purported ability of a fetus to feel pain, and
measures adopted in Kansas and Nebraska require the provision of information on
the availability of ultrasound. In a particularly far-reaching step, the North
Dakota law requires that a woman seeking an abortion be told that the procedure
would “terminate the life of a whole, separate and unique human being.” A
similar provision was adopted by the Kansas legislature, but vetoed by Gov.
Mark Parkinson (D).
Legislators in 22 states introduced measures relating to the
provision of ultrasound as part of the preparation for an abortion. Three of
these measures were enacted, bringing to 16 the number
of states with ultrasound requirements. Laws enacted in Kansas and Nebraska
require abortion providers to offer the woman the opportunity to see the image
if an ultrasound is performed. The new law in North Dakota requires providers
to offer women seeking an abortion the option to have an ultrasound.
Legislators in Connecticut took a somewhat different approach, enacting legislation
that limits ultrasound examinations to those that have been ordered by a
medical provider and conducted for a medical purpose.
Four states adopted measures addressing coerced abortions.
Laws enacted in Ohio, Kansas and North Dakota require abortion providers to
post signs informing women that they cannot be coerced into having the
procedure and encouraging women to contact the authorities or the clinic staff
if they feel pressured to have the procedure. As part of its omnibus abortion
law, Arizona prohibits coercing a woman to have an abortion; unlike several
other components that have been blocked pending litigation, this provision is
in effect.
Although measures relating to parental involvement for
minors seeking an abortion were introduced in 19 states, Arizona’s omnibus
measure was the only one to be enacted in 2009. The measure tightens the
state’s long-standing parental consent requirement by imposing specific
standards for judges to use when determining whether to allow a minor to obtain
the procedure without parental consent. It also requires that the parent’s
consent be notarized before the procedure may be performed. Enforcement of the
notarization requirement is blocked pending litigation, while the judicial
bypass provisions are in effect. Including Arizona, 34 states
require some form of parental involvement before a minor may obtain an
abortion.
Three states adopted measures relating to later-term
abortions. The newly adopted laws in Arkansas and Arizona mirror the federal
“partial-birth” abortion ban that was upheld by the U.S. Supreme Court in 2007;
including these new laws, 17 states have
similar bans on the procedure. Utah amended its law that restricted
abortions performed after 20 weeks’ gestation to apply to abortions provided
after viability; including Utah, 38 states have
laws related to later-term and post-viability abortions. A measure that
would have both banned “partial-birth” abortion and restricted all
postviability procedures was vetoed in Kansas.
Nine states took actions related to alternatives-to-abortion
services in 2009. Virginia authorized the sale of “Choose Life” license plates,
earmarking the profits to fund crisis pregnancy centers across the state; this
brings to 21
the number of states in which the plates are available. Eight other states
continued funding alternatives-to-abortion services for another year as part of
their annual budget legislation. Budget legislation adopted in Iowa, Maryland
and Minnesota also continued long-standing prohibitions on public funding for
abortion.
Three additional laws related to abortion were also enacted.
Oklahoma adopted a measure banning abortion for purposes of sex selection and instituting
intrusive abortion
reporting requirements that require a woman obtaining an abortion to fill
out a lengthy questionnaire, the results of which could be made available on a
state Web site. As part of its omnibus law, Arizona moved to limit the
provision of surgical abortion services to physicians. Implementation of both measures
is blocked pending litigation. Finally, Utah enacted a new law establishing the
Abortion Litigation Trust Account to cover the cost of defending the state
against legal challenges filed against its abortion laws.
Contraception and
Prevention
Over the course of 2009, legislatures in 13 states addressed
key prevention issues. Five states enacted measures specifically designed to
expand or protect access to contraception. In an explicit move to protect
contraceptive services from state restrictions on abortion, Colorado adopted a
measure formally defining contraception as any method used to prevent a
pregnancy from occurring. Utah and Virginia adopted measures to expand access
to emergency contraception for women who have been sexually assaulted. The Utah
measure requires that women be given information about emergency contraception,
and provided with the medication on request, bringing the number of states with such
a mandate to 12. Virginia enacted a new law that allows nurses, working in
collaboration with a physician, to provide all CDC-approved preventive
medications, including emergency contraception, to women who have been sexually
assaulted; no other state has adopted a similar policy.
Two states moved to expand insurance coverage for
contraceptive services. Wisconsin enacted legislation requiring private
insurance plans to include coverage of contraceptive services and supplies if
they already cover outpatient services and prescription drugs; including
Wisconsin, 27
states mandate contraceptive coverage. For their part, Georgia and
Wisconsin moved to expand access under Medicaid. Georgia authorized the state
Medicaid agency to seek federal permission, known as a waiver, to expand
Medicaid coverage for family planning to women with an income up to 200% of the
federal poverty line; 21 states
have similar programs in operation. Wisconsin, which already has a Medicaid
family planning expansion, authorized the state agency to seek federal
permission to expand its program to include men, as is done in eight other
states.
Tennessee, however, adopted a measure to restrict access to
contraceptive services by giving county health departments priority in the
competition for state family planning funds. The measure potentially could
limit funding to other agencies, such as Planned Parenthood affiliates, which
would reduce access in those areas where Planned Parenthood centers are major
providers. Three other
states—including Michigan, which has a similar priority system—extended their
restrictions on state family planning funding in the context of their annual
budget legislation. The addition of Tennessee brings to six the number of states that
restrict family planning funding.
By all accounts, this was an extremely difficult year for
states as they tried to balance their budgets; no service or funding stream was
untouchable, including those related to family planning. In 2009, legislatures in seven states specifically debated
funding levels for family planning services. In three of these states
(California, Iowa and Minnesota), reproductive health advocates successfully
deflected proposed spending restrictions. In the other four states
(Massachusetts, Michigan, Montana and Washington), family planning programs were
cut substantially. It is widely expected that 2010 will present an even worse
fiscal situation, as states are expecting further declines in revenue that are projected
to continue until 2011.
Notwithstanding fiscal pressures, six states moved to expand
access to STI testing, treatment and prevention. Significantly, four states
(Illinois, North Dakota, Utah and Vermont) enacted legislation authorizing
expedited partner treatment, under which health professionals may treat a
patient’s partner for STIs, without requiring the partner to come in for a
clinical visit. In addition,
Oregon adopted a measure directing the state to develop administrative rules
permitting expedited partner treatment. Including these five, 14 states now
permit expedited partner treatment.
In an attempt to reduce HPV infections, Oregon also enacted
a new law requiring health plans to cover the HPV vaccine for girls and women aged
11–26; five other states have similar requirements. The sixth state, Arkansas, moved
to make clear that minors may consent to STI testing and treatment on their
own. All 50 states and the District of Columbia allow minors
to consent to STI services.
Sex Education
Sex education received widespread legislative interest in
2009, with legislators in 29 states introducing measures. By the end of the
year, four new laws were enacted. Hawaii and North Carolina enacted laws
requiring that all sex education in the state be medically accurate and include
a discussion of contraception; this brings to 17 the number of states that will
require a
discussion of contraception in sex education programs. (The situation in
North Carolina was complicated, however, by the fact that the legislation unaccountably
retained a long-standing requirement for abstinence-only education, even as it
added the mandate for discussion of contraception.) The North Carolina law also
requires that sex education include discussions of STIs (including HPV),
healthy relationships, coercion and sexual abuse.
Oregon moved to codify into permanent law its existing
regulations requiring that sex education be medically accurate. Additionally,
the state changed its current requirement that abstinence be taught as the
“safest and most responsible sexual behavior” to a requirement that abstinence
simply be included in sex education programs. And finally, Washington enacted a
provision that would allow the state to seek federal funds for sex education
only if they would be used to fund comprehensive programs.
Pregnancy and Birth
Seventeen states took a variety of steps related to
pregnancy and birth in 2009. New laws in seven states (Colorado, Connecticut, Delaware,
Hawaii, Montana, Rhode Island and Texas) require providers to test a woman for
HIV during her pregnancy, unless she refuses. The District of Columbia joined
all 50 states in enacting a policy that
allows a parent to leave an infant with a health care provider. Four states
moved to expand the reach of their existing laws. Arizona, Tennessee and
Washington expanded the facilities that may accept a relinquished infant, while
a law adopted in Illinois extends the age at which an infant may be
relinquished to 30 days.
Two states enacted new laws on fetal homicide. Legislation
adopted in Indiana allows for a separate murder charge to be filed if a fetus
dies as a result of an assault on a pregnant woman; the previous law had
permitted murder charges to be filed only if the fetus was viable. A new Oregon
law established that murdering or assaulting a pregnant woman when the
perpetrator is aware the woman is pregnant is a crime.
Alaska and Maine enacted laws that would allow women who
have had a miscarriage to obtain a “certificate of stillbirth” from the state.
Although they certify that a stillbirth occurred, these certificates are not
used for purposes of the states’ vital statistics systems.
Finally, North Dakota enacted a unique law affecting a minor’s
ability to consent to prenatal care. Under the law, the minor may consent to
care during the first trimester and for one subsequent visit; the minor’s
parents must, however, consent to any care received later in a minor’s
pregnancy. Including North Dakota, 37 states and
the District of Columbia have related laws, although all the other states
permit a minor to consent to prenatal care throughout pregnancy.
Refusal Clauses and
Duty to Provide Services
Two states moved to expand their existing refusal
provisions in 2009. The Arizona measure, which is blocked pending
litigation, would allow all medical providers, including pharmacists, and pharmacies
to refuse to facilitate or participate in abortions,
emergency contraceptive services or contraceptive services. (The previous law
had been limited to hospitals and physicians, and their employees.) The new law
in Louisiana permits anyone, including medical providers and pharmacists, to
refuse to provide abortions and dispense drugs for medication abortion. (The
state’s previous law had applied only to medical providers and hospitals.)
Unlike most refusal clauses, however, the new Louisiana law institutes
important patient protections. The law requires health care facilities to
ensure that patients can access services in a timely manner, even if a provider
refuses to perform the service; it also requires providers that refuse to
provide services to notify their employer and inform patients about their
refusal at the time a service is requested. Forty-six states have
abortion-related refusal clauses, and 13 allow providers to refuse to participate
in contraceptive services.
Wisconsin, meanwhile, moved to protect access to
contraceptives in pharmacies by enacting legislation requiring pharmacies to
dispense prescription contraceptives and emergency contraception in a timely
manner. The measure permits a pharmacy to refuse to dispense the medication
only if the prescription is fraudulent or contains errors or if the medication
is contraindicated for the patient. The new law brings to five the number of
states that protect
pharmacy access.
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