State Legislative Trends 2006

Rachel Gold and Elizabeth Nash

Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.

Literally hundreds of bills relating to reproductive health and rights get introduced in state legislatures every year. While most of them never make it all the way through the legislative process, several dozen usually do become law—and it is crucial for SRH advocates to be aware of the trends in state legislatures, both positive and negative.

Over the course of 2006, 29 states enacted a total of 62 new laws addressing a wide range of reproductive health and rights-related concerns. Although this represents nearly 20% fewer laws than the 78 enacted in 2005, it follows a long-standing pattern of lessened activity in even-numbered years that may be largely due to circumstances unrelated to reproductive health politics: 21 states only address budget bills—the locus of much reproductive health policymaking—in odd-numbered years, and legislatures in six states convene only in odd-numbered years. This analysis addresses enacted laws related to abortion (26 new laws), contraception (11) and statutory rape reporting (3).

Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.

Literally hundreds of bills relating to reproductive health and rights get introduced in state legislatures every year. While most of them never make it all the way through the legislative process, several dozen usually do become law—and it is crucial for SRH advocates to be aware of the trends in state legislatures, both positive and negative.

Over the course of 2006, 29 states enacted a total of 62 new laws addressing a wide range of reproductive health and rights-related concerns. Although this represents nearly 20% fewer laws than the 78 enacted in 2005, it follows a long-standing pattern of lessened activity in even-numbered years that may be largely due to circumstances unrelated to reproductive health politics: 21 states only address budget bills—the locus of much reproductive health policymaking—in odd-numbered years, and legislatures in six states convene only in odd-numbered years. This analysis addresses enacted laws related to abortion (26 new laws), contraception (11) and statutory rape reporting (3).

Abortion

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Clearly unconstitutional abortion bans, designed as a direct challenge to Roe v. Wade, received considerable attention in state legislatures in 2006, with proposed bans introduced in 12 states. South Dakota became the first state in 15 years to pass such a law, making all abortions illegal in the state unless the woman's life is endangered. (Similar laws adopted in Louisiana and Utah in 1991 were predictably struck down in federal court.) Following the measure's passage, a petition put it before South Dakota voters in November, who soundly defeated the ban, 56% to 44%.

Taking a different approach, legislators in five states introduced measures to ban abortion immediately if Roe is overturned. Louisiana was the only state to enact such a law in 2006. That measure, which is similar to one already on the books in South Dakota, would prohibit a woman from obtaining an abortion unless continuing the pregnancy could cause a severe risk to her physical health or result in her death.

Meanwhile, legislators in five states introduced bills designed to protect abortion rights notwithstanding the future of Roe. Hawaii was the only state to enact a new law, which prevents the state from interfering with a woman's access to abortion before viability or when it is necessary to protect her life or health. This brings to seven the number of states that explicitly protect abortion rights. (See Abortion Policy in the Absence of Roe.)

Four states moved to tighten existing requirements for minors seeking an abortion. Two states, Oklahoma and Utah, added provisions requiring parental consent for a minor seeking an abortion to their existing requirement that a parent be notified. With passage of these new laws, 21 states now require parental consent, 11 require parental notice and two require both before a minor's abortion. (See Parental Involvement in Minors' Abortions.)

On the other side of the ledger, voters in California and Oregon dealt a severe blow to antichoice forces by defeating ballot initiatives to require parental notification before a minor may obtain an abortion. Both results came as somewhat of a surprise. Polling in Oregon had suggested the initiative would pass, while the California proposal was soundly defeated for the second year in a row.

Two additional states, Tennessee and Texas, adjusted their policies to ensure that those consenting to an abortion for a minor are, in fact, the minor's parent. Tennessee enacted legislation requiring proof of parenthood, and the Texas Medical Board issued rules requiring that the consent form be notarized. (Arizona Gov. Janet Napolitano (D) vetoed a similar measure.)

Legislators have long looked to mandating specific content of the counseling information prior to having an abortion as a way to deter women from terminating a pregnancy. In recent years, many have focused on requiring that a woman be told that fetuses have the ability to feel pain at 20 weeks' gestation. In 2006, Oklahoma adopted a measure requiring that a woman seeking an abortion be told that a fetus may feel pain after 20 weeks' gestation. Similar bills were passed by one house of the legislature in Arizona, Indiana, Louisiana and Utah, and vetoed by the governors in Arizona and Wisconsin. The new Oklahoma law brings to five the number of states requiring that women be given unsupported information about fetal pain. (See Mandatory Counseling and Waiting Periods for Abortion.)

In a closely related strategy, legislators have looked to promoting ultrasound imaging as a means of deterring women from seeking an abortion. Under a measure adopted in Oklahoma in 2006, abortion providers must offer an ultrasound image of the fetus during abortion counseling; this brings to six the total number of states requiring that ultrasound be offered. Addressing the issue from a somewhat different perspective, Michigan enacted legislation requiring that when an ultrasound is performed as part of an abortion counseling session, the physician must give the woman the opportunity to view and take home the ultrasound image.

In contrast, Idaho adopted a measure requiring that the abortion counseling materials developed by the state be "medically accurate and nonmisleading." By enacting this law, Idaho joins Alaska and Wisconsin in requiring that all information covered is medically accurate. In 18 other states, a more limited medical accuracy provision applies to only certain aspects of the materials, most often the information related to fetal development. Virginia is alone among the 22 states with state-developed abortion counseling materials with no requirement for medical accuracy.

Six states took steps to promote "alternatives to abortion" in 2006, using three different strategies. Arizona, Louisiana, Missouri, Oklahoma and Pennsylvania all provided funding for programs providing alternatives. The Missouri measure explicitly prohibits the funds from being used for family planning services or referrals; the state also explicitly made donations to so-called crisis pregnancy centers exempt from state taxes. Finally, a measure enacted in Georgia will create "choose life" license plates, and will earmark funds generated from the sale of the plates to groups that encourage women to consider adoption instead of abortion; this brings to 16 the number of states authorizing the sale of these license plates. (See ‘Choose Life' License Plates.)

Four states adopted provisions related to abortion providers. Pennsylvania and South Dakota adopted laws imposing regulations on abortion clinics. The South Dakota measure gives the state Department of Health extremely wide latitude in regulating and inspecting abortion facilities. The Pennsylvania measure increases both the fees and administrative obligations for abortion facilities that perform over 100 abortions per year.

At the other end of the spectrum, California and Washington adopted measures designed to protect access to abortion clinics. The new California law makes it a crime to disclose the names of clinic employees, volunteer or patients with the intent of threatening them, while the measure adopted in Washington prohibits insurers from refusing to insure an abortion provider that has been the victim of arson or vandalism.

Two states moved to continue existing state policy related to the use of public funds for abortion services. Maryland reenacted its long-standing policy to pay for abortions for Medicaid recipients when the woman's physical or mental health would be threatened or the pregnancy was the result of rape or incest. Including Maryland, 17 states pay for all or most abortions for low-income residents. Also last year, Michigan reenacted its policy prohibiting insurance coverage of abortion for employees of community colleges unless the woman's life is endangered. (See State Funding of Abortion Under Medicaid.)

Contraception

State policymakers took steps both legislatively and administratively to expand access to contraception through both employer-sponsored insurance and Medicaid in 2006. The New Jersey legislature enacted a law mandating private-sector insurance coverage of contraceptive services and supplies. Three additional states expanded contraceptive coverage by administrative action. The Montana Attorney General, the Michigan Civil Rights Commission and the Wisconsin Department of Workforce Development all concluded that excluding contraceptives from health plans that cover other prescription drugs constitutes sex discrimination. As a result of these moves, 26 states now mandate insurance coverage of contraceptive services and supplies. (See Insurance Coverage of Contraceptives.)

[Also this year, New York's highest court upheld the provision in that state's long-standing mandate permitting only bona fide religious employers—those whose mission is to promote the doctrines of a specific faith and who primarily employ and serve people sharing that faith—to refuse to include coverage in their insurance policies.]

State legislatures and health departments are also continuing to expand eligibility for family planning services under Medicaid. For several years, Virginia has provided extended family planning coverage for two years following a Medicaid-funded delivery to women otherwise leaving the Medicaid rolls. In 2006, the legislature directed the state to apply for federal approval to include all women in the state with an income up to 133% of poverty, regardless of any prior relationship with Medicaid. To date, 25 states have obtained federal approval to expand Medicaid eligibility for family planning services to certain classes of individuals who are otherwise ineligible for Medicaid; 17 of these states provide family planning benefits to individuals based on their income alone. (See State Medicaid Family Planning Eligibility Expansions.)

Two states also took steps to improve access to contraceptive supplies in pharmacies. Vermont adopted a measure permitting pharmacists to dispense emergency contraception without a prescription, bringing to nine the number of states permitting pharmacists to dispense the medication under the aegis of a collaborative practice arrangement with a physician or through a state protocol. With the federal Food and Drug Administration ruling in mid-2006 to allow over-the-counter distribution of emergency contraception to adults, these measures now apply only to minors. Finally, a measure adopted in California requires pharmacies to post a notice in a conspicuous place outlining individuals' right to access their medications in a timely manner. A similar requirement was instituted in Illinois by way of an administrative regulation. (See Emergency Contraception.)

While most of the measures relating to contraception enacted in 2006 were aimed at expanding access, some were not. Colorado, Michigan, Ohio and Pennsylvania all moved to continue long-standing restrictions that prohibit state family planning funds from being used to provide counseling or referral for abortion. All of these states except Michigan (in which such action is unnecessary) also used their annual budget process to extend existing requirements that state-funded family planning providers be physically and financially separate from abortion services. (See State Family Planning Funding Restrictions)

Finally, Wisconsin moved to require that all sex education provided in the state teach that abstinence before marriage is the preferred behavior and emphasize that abstinence from sexual activity is the most effective way to prevent pregnancy and sexually transmitted infections; the law does not mandate that information about contraception be provided. This law brings to 22 the number of states requiring preferential treatment of abstinence in sex education. (See Sex and STD/HIV Education.)

Statutory Rape Reporting

Several legislatures addressed the question of mandated reporting of all instances of technical statutory rape, a trend that is worrisome to adolescent health advocates, who fear that such reporting requirements, while facially protective, may have a chilling effect on minors seeking care and on providers. Minors might be less likely to seek either family planning or abortion services for fear their partners may be prosecuted, while health care providers could be forced to artificially delineate between consensual sex and abuse. Legislation tightening the requirements for reporting suspected cases of statutory rape was introduced in 15 states in 2006, a dramatic increase from 2005, when measures were introduced in 4 states.

In 2006, Missouri and Tennessee both enacted tough new reporting requirements. Under the new Missouri law, a physician treating a pregnant minor who has reason to suspect that the pregnancy is the result of statutory rape must file a report; in the past physicians were only required to report suspected cases of child abuse. Abortion practitioners in Tennessee must file a report with the Tennessee Bureau of Investigation when performing an abortion on a minor under 13; they must also save fetal tissue from the procedure for use in a possible criminal investigation. Also in 2006, Kansas Attorney General Phill Kline (R) attempted to require health care providers to file sexual abuse reports to law enforcement agencies in instances of consensual sex between minors, which is technically illegal under state law. The move was challenged in court and garnered wide media attention before being overturned.

Check out more posts by Elizabeth Nash and Rachel Gold.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

Roundups Politics

Campaign Week in Review: Tim Kaine Outlines Plan to ‘Make Housing Fair’

Ally Boguhn

“A house is more than just a place to sleep. It's part of the foundation on which a family can build a life,” wrote Sen. Tim Kaine (D-VA). “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Donald Trump made some controversial changes to his campaign staff this week, and Sen. Tim Kaine (D-VA) noted his commitment to better housing policies.

Trump Hires Controversial Conservative Media Figure

Republican presidential nominee Trump made two notable additions to his campaign staff this week, hiring Breitbart News’ Stephen Bannon as CEO and GOP pollster Kellyanne Conway as campaign manager.

“I have known Steve and Kellyanne both for many years. They are extremely capable, highly qualified people who love to win and know how to win,” said Trump in a Wednesday statement announcing the hires. “I believe we’re adding some of the best talents in politics, with the experience and expertise needed to defeat Hillary Clinton in November and continue to share my message and vision to Make America Great Again.”

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Both have been criticized as being divisive figures.

Conway, for example, previously advised then-client Todd Akin to wait out the backlash after his notorious “legitimate rape” comments, comparing the controversy to “the Waco with David Koresh situation where they’re trying to smoke him out with the SWAT teams.” According to the Southern Poverty Law Center (SPLC), Conway is also “often cited by anti-immigrant and anti-Muslim organizations such as the think tank Center for Security Policy and NumbersUSA.”

Under Bannon’s leadership, “mainstream conservative website” Breitbart.com changed “into a cesspool of the alt-right,” suggested the publication’s former editor at large, Ben Shapiro, in a piece for the Washington Post‘s PostEverything. “It’s a movement shot through with racism and anti-Semitism.”

Speaking with ABC News this week, Kurt Bardella, who also previously worked with Bannon at Breitbart, alleged that Bannon had exhibited “nationalism and hatred for immigrants, people coming into this country to try to get a better life for themselves” during editorial calls.

“If anyone sat there and listened to that call, you’d think that you were attending a white supremacist rally,” said Bardella.

Trump’s new hire drew heated criticism from the Clinton campaign in a Wednesday press call. “The Breitbart organization has been known to defend white supremacists,” said Robby Mook, Clinton’s campaign manager. After pointing to an analysis from the SPLC linking Breitbart to the extremist alt-right movement, Mook listed a number of other controversial positions pushed by the site.

“Breitbart has compared the work of Planned Parenthood to the Holocaust. They’ve also repeatedly used anti-LGBT slurs in their coverage. And finally, like Trump himself, Breitbart and Bannon have frequently trafficked in all sorts of deranged conspiracy theories from touting that President Obama was not born in America to claiming that the Obama Administration was ‘importing more hating Muslims.’”

“It’s clear that [Trump’s] divisive, erratic, and dangerous rhetoric simply represents who he really is,” continued Mook.

Kaine Outlines Plan to “Make Housing Fair”

Clinton’s vice presidential nominee Kaine wrote an essay for CNN late last week explaining how the Clinton-Kaine ticket can “make housing fair” in the United States.

“A house is more than just a place to sleep. It’s part of the foundation on which a family can build a life,” wrote Kaine. “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Kaine shared the story of Lorraine, a young Black woman who had experienced housing discrimination, whom Kaine had represented pro bono just after completing law school.

“This is one issue that shows the essential role government can play in creating a fairer society. Sen. Ed Brooke, an African-American Republican from Massachusetts, and Sen. Walter Mondale, a white Democrat from Minnesota, came together to draft the Fair Housing Act, which protects people from discrimination in the housing market,” noted Kaine, pointing to the 1968 law.

“Today, more action is still needed. That’s why Hillary Clinton and I have a bold, progressive plan to fight housing inequities across Americaespecially in communities that have been left out or left behind,” Kaine continued.

The Virginia senator outlined some of the key related components of Clinton’s “Breaking Every Barrier Agenda,” including an initiative to offer $10,000 in down payment assistance to new homebuyers that earn less than the median income in a given area, and plans to “bolster resources to enforce Fair Housing laws and fight housing discrimination in all its forms.”

The need for fair and affordable housing is a pressing issue for people throughout the country.

“It is estimated that each year more than four million acts of [housing] discrimination occur in the rental market alone,” found a 2015 analysis by the National Fair Housing Alliance.

No county in the United States has enough affordable housing to accommodate the needs of those with low incomes, according to a 2015 report released by the Urban Institute. “Since 2000, rents have risen while the number of renters who need low-priced housing has increased,” explained the report. “Nationwide, only 28 adequate and affordable units are available for every 100 renter households with incomes at or below 30 percent of the area median income.”

What Else We’re Reading

CBS News’ Will Rahn penned a primer explaining Trump campaign CEO Bannon’s relationship to the alt-right.

White supremacists and the alt-right “rejoice[d]” after Trump hired Bannon, reported Betsy Woodruff and Gideon Resnick for the Daily Beast.

Clinton published an essay in Teen Vogue this week encouraging young people to fight for what they care about, learn from those with whom they disagree, and get out the vote.

“In calling for ‘extreme vetting’ of foreigners entering the United States, Republican presidential nominee Donald Trump suggested a return to a 1950s-era immigration standard—since abandoned—that barred entry to people based on their political beliefs,” explained USA Today.

Trump wants to cut a visa program “his own companies have used … to bring in hundreds of foreign workers, including fashion models for his modeling agency who need exhibit no special skills,” according to a report by the New York Times.

A Koch-backed group “has unleashed an aggressive campaign to kill a ballot measure in South Dakota that would require Koch-affiliated groups and others like them to reveal their donors’ identities.”

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