State Legislative Trends: Abortion Ban Travels Across Country

Rachel Gold and Elizabeth Nash

With the legislative year in full swing, clear trends in the states are emerging, largely in the wake of last year's Supreme Court decision in Gonzalez v. Carhart.

At the end of March 2008, just over 800 measures had been introduced in the 43 state legislatures that have convened so far this year. And with the legislative year in full swing, some interesting trends are emerging, largely in the wake of last year's Supreme Court decision in Gonzales v. Carhart.

In its most direct effect, the Court's decision to uphold the Federal Partial-Birth Abortion Ban Act of 2003 set a major precedent that state legislators seem to be following. Twenty-three bills banning "partial-birth" abortion have been introduced in 11 states so far this year. In four states (Alaska, Kentucky, Michigan and Wisconsin), the measures have passed one house of the legislature and are pending in the second chamber. A fifth measure has been approved by the legislature in Arizona. (It was vetoed by Gov. Janet Napolitano [D] in April).

Almost all of the states in which legislation has been proposed already have adopted a ban that has been enjoined and so is not in effect (see Bans on "Partial-Birth" Abortion). Some of pending measures attempt to modify these enjoined laws while others seek to enact a whole new law; in either case, these bills are drawing upon language from the federal ban in hopes that that they will pass constitutional muster.

Most of these measures are characterized by their definition of the procedure, lack of a health exception and strict penalties. The Court upheld the federal ban, in part, because it found the definition of the procedure to be sufficiently precise so as to exclude most common second trimester procedures. To follow this precedent, the pending state measures generally lift the federal ban's definition almost verbatim.

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While it does include an exception for those instances where a "partial-birth" procedure is necessary to save a woman's life, the federal ban does not make an exception to preserve a woman's health. Again, state legislation is following suit. While all of the bills under consideration include a life exception, most fail to include an exception to preserve the woman's health.

Finally, the pending bills would expand local discretion in deciding when to prosecute a case and the penalties that could be assessed. Although federal prosecutors would need to bring charges under the federal ban, local authorities, who might come under intense political pressure, would be empowered to file charges against physicians under the state provisions. Moreover, some of the bills pending in the states would permit penalties even stiffer than those provided for in the federal ban.

In addition to upholding the federal ban on "partial-birth" abortion, the Court's decision in Gonzales v. Carhart included language essentially inviting states to utilize their abortion counseling requirements to include the provision of information aimed at dissuading women from obtaining an abortion. (For additional information see State Abortion Counseling Policies and the Fundamental Principles of Informed Consent.) So far this year, most of the attention given to issues related to abortion counseling has been focused on measures that would mandate the provision of information or services related to ultrasound prior to an abortion.

The 16 measures that have been introduced in 11 states take a variety of approaches. Measures in eight states (Colorado, Georgia, Kansas, Missouri, New Jersey, New York, South Dakota and West Virginia) would require abortion providers to offer information related to ultrasound and/or refer the woman to agencies where the procedure may be obtained. In three states (Kansas, Ohio and South Carolina), the measures would require the abortion provider to offer the woman the opportunity to view the ultrasound image whenever the procedure is performed as part of the preparation for an abortion.

Most dramatically, measures in eight states (Florida, Kentucky, Missouri, North Carolina, Oklahoma, Tennessee, Virginia and West Virginia) would go so far as to require the provider to perform an ultrasound prior to any abortion. Some of these would require that the woman be given the opportunity to review the image, while others would not give her that choice. Bills that have passed one house of the legislature in Kentucky and Oklahoma require the provider to review the image with the woman, while permitting the woman to "avert" her eyes from the image if she chooses.

So far this year, two states have enacted new laws. A new law in South Dakota requires every woman seeking an abortion to under go an ultrasound and to be given the option of viewing the image. A law adopted in Ohio requires that a woman be offered the opportunity to view an ultrasound whenever one is performed in preparation for an abortion. With the addition of these new measures, 15 states have laws on ultrasound provision. (For additional information see Requirements for Ultrasound.)

For summaries of major state legislative actions so far this year, click here.
For a table showing legislation enacted in 2008, click here.
For the status of state laws and policies on key reproductive health and rights issues, click here.

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