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).
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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.)
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.