State Policy Trends 2013: Abortion Bans Move to the Forefront

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Analysis Law and Policy

State Policy Trends 2013: Abortion Bans Move to the Forefront

Elizabeth Nash & Rachel Benson Gold

Unlike in recent years, when the thrust of legislative activity was on regulating abortion, this year legislators seem to be focusing on banning abortion outright.

In 2013, as in recent years, state legislatures are devoting significant attention to issues related to reproductive health and rights. During the first three months of the year, legislators have introduced 694 provisions on these issues, and 93 have been approved by at least one legislative body.

Also in line with recent experience, abortion restrictions are at the center of state legislative activity. About half (47 percent) of all reproductive health measures introduced in the first quarter of the year seek to restrict access to abortion. But unlike in recent years, when the thrust of legislative activity was on regulating abortion (for example, requirements that women undergo an ultrasound, clinic regulations, or insurance coverage restrictions), this year legislators seem to be focusing on banning abortion outright—either by declaring that “personhood” begins at the moment of conception or by prohibiting abortion even during the first trimester of pregnancy.

In a positive development, at the end of March two states were poised to enact legislation expanding access to comprehensive sex education; if enacted, this would be the first time since 2010 that any state has done so. (See here for a more detailed version of this analysis.)

Abortion Bans

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During the first three months of 2013, legislators in 14 states introduced provisions seeking to ban abortion prior to viability. These bans fall into three categories: measures that would prohibit all abortions, those that would ban abortions after a specified point during the first trimester of pregnancy, and those that would block abortions at 20 weeks after fertilization (the equivalent of 22 weeks after the woman’s last menstrual period, the conventional method physicians use to measure pregnancy). All of these proposals are in direct violation of U.S. Supreme Court decisions.

Legislators in 10 states have introduced proposals that would ban all, or nearly all, abortions. In eight of those states (Alabama, Iowa, Mississippi, North Dakota, Oklahoma, South Carolina, Virginia, and Washington), legislators have proposed defining “personhood” as beginning at conception; if adopted, these measures would ban most, if not all, abortions. Meanwhile, in four states (Colorado, Florida, Iowa, and North Dakota) legislators introduced measures that would ban abortion except in very limited circumstances, such as when the woman’s life is endangered or in cases of rape or incest; none have passed a legislative chamber.

Already in 2013, Arkansas and North Dakota have enacted legislation banning nearly all abortions beginning at some point in the first trimester of pregnancy. Similar measures have been introduced in four other states (Kansas, Kentucky, Mississippi, and Wyoming). The Arkansas and North Dakota laws are clearly intended as direct challenges to U.S. Supreme Court decisions that states may not impose an undue burden on women seeking an abortion prior to viability, a point that is generally reached just after the end of the second trimester of pregnancy. Supporters of abortion rights are widely expected to take up the gauntlet and contest the prohibitions.

Finally, legislation to ban abortions at 20 weeks post-fertilization was enacted in Arkansas and are pending in nine other states (Iowa, Illinois, Kentucky, Maryland, North Dakota, Oregon, Texas, Virginia, and West Virginia). These bans are patterned after a 2010 Nebraska law that has already served as the model for such laws in eight other states, two of which are enjoined pending legal challenges because they prohibit abortion prior to viability.

Medication Abortion Limitations

Legislators in eight states (Alabama, Arkansas, Iowa, Indiana, Missouri, Mississippi, North Carolina, and Texas) have introduced provisions to restrict medication abortion. If adopted, these restrictions would have a profound impact on access to medication abortion (see our related analysis here). State-adopted restrictions on medication abortion generally take two approaches.

First, some restrictions prohibit use of telemedicine by requiring the physician prescribing the medication to be in the same room as the patient. During the first quarter of 2013, both houses of the Mississippi legislature approved a telemedicine ban; the measure is awaiting debate by a conference committee. As of the end of March, similar provisions have passed a legislative chamber in Alabama and Indiana and are pending in the second body. Seven states already ban telemedicine for prescribing medication abortion. (In early April, the governor signed the Alabama measure into law and the state house passed the Indiana measure, which is now pending in a conference committee.)

Other restrictions require medication abortion to be provided in strict accordance with long-standing Food and Drug Administration (FDA) protocol, prohibiting use of a widely used, simpler protocol that has been demonstrated to be safe and effective. Legislation requiring the FDA protocol is pending in Iowa and Texas. Arizona and Ohio already have such a requirement in effect, and a similar law in North Dakota is enjoined because of a legal challenge.

Sex Education

For the first time since 2010, there is movement toward expanding comprehensive sexuality education. The Colorado legislature approved a measure to require all sex education in the state to be scientifically proven to delay sexual debut, reduce adolescents’ number of sexual partners and sexual frequency, or increase their contraceptive use. The measure, which is awaiting approval by Gov. John Hickenlooper (D), effectively would prohibit abstinence-only instruction. Meanwhile, the Hawaii house adopted a measure that would include instruction on skills for building healthy relationships, making decisions, and talking to family members about sex.

For more information:

Guttmacher State Center

State policies in brief

Major state policy developments in 2013

Chart of enacted bills

Policy analysis on medication abortion restrictions

2012 state policy trends