By almost any measure, issues related to reproductive health and rights at the state level received unprecedented attention in 2011. In the 50 states combined, legislators introduced more than 1,100 reproductive health and rights-related provisions, a sharp increase from the 950 introduced in 2010. By year’s end, 135 of these provisions had been enacted in 36 states, an increase from the 89 enacted in 2010 and the 77 enacted in 2009. (Note: This analysis refers to reproductive health and rights-related “provisions,” rather than bills or laws, since bills introduced and eventually enacted in the states contain multiple relevant provisions.)
Fully 68 percent of these new provisions—92 in 24 states—-restrict access to abortion services, a striking increase from last year, when 26 percent of new provisions restricted abortion. The 92 new abortion restrictions enacted in 2011 shattered the previous record of 34 adopted in 2005.
- For summaries of major state-level actions in 2011, click here.
- For a table showing reproductive health and rights-related provisions enacted in 2011, click here.
- For the status of state law and policy on key reproductive health and rights issues, click here.
Abortion Restrictions Took Many Forms
Bans. The most high-profile state-level abortion debate of 2011 took place in Mississippi, where voters rejected the ballot initiative that would have legally defined a human embryo as a person “from the moment of fertilization,” setting the stage to ban all abortions and, potentially, most hormonal contraceptive methods in the state. Meanwhile, five states (AL, ID, IN, KS and OK) enacted provisions to ban abortion at or beyond 20 weeks’ gestation, based on the spurious assertion that a fetus can feel pain at that point. These five states join Nebraska, which adopted a ban on abortions after 20 weeks in 2010 (see State Policies on Later Abortions). A similar limitation was vetoed by Minnesota Gov. Mark Dayton (D).
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Waiting Periods. Three states adopted waiting period requirements for a woman seeking an abortion. In the most egregious of the waiting-period provisions, a new South Dakota law would have required a woman to obtain pre-abortion counseling in person at the abortion facility at least 72 hours prior to the procedure; it would also have required her to visit a state-approved crisis pregnancy center during that 72-hour interval. The law was quickly enjoined in federal district court and is not in effect. A new provision in Texas requires that women who live less than 100 miles from an abortion provider obtain counseling in person at the facility at least 24 hours in advance. Finally, new provisions in North Carolina require counseling at least 24 hours prior to the procedure. With the addition of new requirements in Texas and North Carolina, 26 states mandate that a woman seeking an abortion must wait a prescribed period of time between the counseling and the procedure (see Counseling and Waiting Periods for Abortion).
Ultrasound. Five states adopted provisions mandating that a woman obtain an ultrasound prior to having an abortion. The two most stringent provisions were adopted in North Carolina and Texas and were immediately enjoined by federal district courts. Both of these restrictions would have required the provider to show and describe the image to the woman. The other three new provisions (in AZ, FL and KS), all of which are in effect, require the abortion provider to offer the woman the opportunity to view the image or listen to a verbal description of it. These new restrictions bring to six the number of states that mandate the performance of an ultrasound prior to an abortion (see Requirements for Ultrasound).
Insurance Coverage. Kansas, Nebraska, Oklahoma and Utah adopted provisions prohibiting all insurance policies in the state from covering abortion except in cases of life endangerment; they all permit individuals to purchase additional coverage at their own expense. These new restrictions bring to eight the number of states limiting abortion coverage in all private insurance plans (see Restricting Insurance Coverage of Abortion).
These four provisions also apply to coverage purchased through the insurance exchanges that will be established as part of the implementation of health care reform. Five additional states (FL, ID, IN, OH and VA) adopted requirements that apply only to coverage purchased on the exchange. The addition of these nine states brings to 16 the number of states restricting abortion coverage available through state insurance exchanges.
Clinic Regulations. Four states enacted provisions directing the state department of health to issue regulations governing facilities and physicians’ offices that provide abortion services. A new provision in Virginia requires a facility providing at least five abortions per month to meet the requirements for a hospital in the state. New requirements in Kansas, Pennsylvania and Utah direct the health agency to develop standards for abortion providers, including requirements for staffing, physical plant, equipment and emergency supplies; supporters of the measures made it clear that the goal was to set standards that would be difficult, if not impossible, for abortion providers to meet. Enforcement of the proposed Kansas regulations has been enjoined by a state court.
Medication Abortion. In 2011, states for the first time moved to limit provision of medication abortion by prohibiting the use of telemedicine. Seven states (AZ, KS, NE, ND, OK, SD and TN) adopted provisions requiring that the physician prescribing the medication be in the same room as the patient (see Medication Abortion).
Family Planning Under Pressure
Family planning services and providers were especially hard-pressed in 2011, facing significant cuts to funding levels, as well as attempts to disqualify some providers for funding because of their association with abortion. Considering the historic fiscal crises facing many states, it is significant that family planning escaped major reductions in nine (CO, CT, DE, IL, KS, MA, ME, NY and PA)of the 18 states where the budget has a specific line-item for family planning. The story, however, was different in the remaining nine states. In six (FL, GA, MI, MN, WA and WI), family planning programs sustained deep cuts, although generally in line with decreases adopted for other health programs. In the other three states, however, the cuts to family planning funding were disproportionate to those to other health programs: Montana eliminated the family planning line item, and New Hampshire and Texas cut funding by 57% and 66%, respectively.
Indiana, Colorado, Ohio, North Carolina Texas and Wisconsin, meanwhile, moved to disqualify or otherwise bar certain types of providers from the receipt of family planning funds. New Hampshire decided not to renew its contract through which the Planned Parenthood affiliate in the state received Title X funds.
Given the difficult fiscal and political climate in states in 2011, it is especially noteworthy that Maryland, Washington and Ohio took steps to expand Medicaid eligibility for family planning. With the approval of these two programs, 24 states have expanded eligibility for family planning under Medicaid based solely on income; seven have utilized the new authority under health care reform (see Medicaid Family Planning Eligibility Expansions).
Abstinence-Only Education Is Back
Unlike in recent years when states had moved to expand access to comprehensive, medically accurate sex education, the only relevant measures enacted in 2011 expanded abstinence education. Mississippi, which had long mandated abstinence education, adopted provisions that make it more difficult for a school district to include other subjects, such as contraception, in order to offer a more comprehensive curriculum. A district will now need to get specific permission to do so from the state department of education. A new requirement enacted in North Dakota mandates that the health education provided in the state include information on the benefits of abstinence “until and within marriage.” Including North Dakota, 37 states now mandate abstinence education (see Sex and HIV Education).
Sexually Transmitted Infections
Over the course of 2011, three states adopted provisions permitting a health care provider to prescribe STI treatment to the partner of a patient, even if he or she has not been seen by the provider. (see Partner Treatment for STIs).