Abortion, Contraception, and Sex Ed in the States in 2008

Rachel Gold and Elizabeth Nash

In 2008, a few state legislatures took steps to promote reproductive health, by requiring hospitals to provide information on EC to rape survivors and laying the groundwork for expanding Medicaid family planning coverage.

Social issues, including those
related to reproductive health and rights, were not the top priority
in 2008 for state legislators, who mostly spent the year grappling with
budget crises and infrastructure issues even as they sought to shorten
their sessions so they could hit the campaign trail in advance of the
November elections. Nevertheless, 1,001 measures relating to reproductive
health and rights were introduced in 44 states and the District of Columbia
over the course of the year, and 33 new laws were enacted in 20 states.
(Six state legislatures did not meet in 2008.) 

While none of the 17 new abortion-related
laws expand access to services, a few states took significant steps
to promote reproductive health by requiring hospitals to provide information
on emergency contraception to women who have been sexually assaulted,
laying the groundwork for expanding Medicaid family planning coverage
and mandating insurance coverage of the human papillomavirus (HPV) vaccine. 

Meanwhile, voters in three
states cast ballots on abortion-related ballot initiatives in November,
all of which failed. The initiatives defeated in Colorado and South
Dakota would have banned abortion, the former by establishing personhood
at conception and the latter by banning abortion except in cases of
life endangerment, rape, incest or when the woman’s physical health
is extremely endangered. The measure defeated in California would have
required notification of a parent before a minor obtains an abortion;
this was the third time in four years that a parental notification proposal
was rejected by voters. 


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Over the course of the year,
nine states enacted new provisions, amended current law or continued
funding requirements related to abortion. Among the new laws is an omnibus
measure in Oklahoma -enacted over Gov. Brad Henry’s (D) veto – that
includes seven separate provisions.

  • Four states imposed
    ultrasound requirements on abortion providers, bringing the total number
    of states with these provisions to 16. Oklahoma’s new omnibus law
    requires all abortion providers to have ultrasound equipment on-site
    and to perform an ultrasound on every woman obtaining an abortion. 
    The provider is also required to verbally describe the image to the
    woman and position the monitor so she is able to see it, although the
    law explicitly permits the woman to avert her eyes if she desires. (This
    law is not in effect pending the outcome of a legal challenge.) 
    In Ohio and South Carolina, new laws require that the woman be offered
    the option to view an ultrasound image if the provider performs the
    test in preparation for the abortion. In South Dakota, the woman must
    be offered the option of undergoing an ultrasound. (See Requirements for

  • Two states enacted
    laws that purport to address the issues of coerced abortion. The omnibus Oklahoma
    measure requires abortion providers to post notices informing women
    that coerced abortion is illegal and that they can contact the authorities
    for assistance if needed. A new Idaho law makes it a crime to coerce
    a woman into having an abortion by either physically harming her or
    threatening to do so. These new laws are the result of efforts by abortion
    opponents to characterize abortion providers as often being complicit
    in forcing women to have abortions, despite the absence of data to substantiate
    their claims.

  • Six states addressed
    funding for abortion or alternatives to abortion. As part of its annual
    appropriations process, Maryland continued a long-standing limitation
    on the use of state Medicaid funds for abortions necessary in cases
    of life endangerment, rape, incest, fetal abnormality or when the woman’s
    physical or mental health is at risk. Iowa also used its budget process
    to continue its policy of paying for medically necessary abortions under
    Medicaid. (See State
    Funding of Abortion Under Medicaid

  • Oklahoma’s omnibus
    abortion law contains two provisions related to medication abortion.
    The first requires providers to follow the FDA-approved protocol, which
    would preclude offering women newer, widely used lower-dose regimens
    of the medication that have been found to be as effective with fewer
    side effects. The new law also limits the provision of medication abortion
    to physicians, despite the fact that advanced practice clinicians (such
    as physician assistants, certified nurse midwives and advanced nurse
    practitioners) are permitted to provide medication abortions (as opposed
    to surgical abortions) in many states; research has shown that they
    do so with the same level of safety and efficacy as physicians.

  • The Oklahoma law
    also has two provisions not found in any other measure enacted last
    year. One prohibits a woman from suing a medical provider who does not
    give full and accurate information about her pregnancy if the misinformation
    results in her carrying the pregnancy to term, provided that the wrongful
    act or omission does not place the woman’s life or health at risk.
    The other greatly expands the ability of health care professionals and
    facilities in the state to refuse to provide or refer for abortion.
    (See Refusing
    to Provide Health Services.


Contraception and Prevention 

  • Three laws enacted
    in 2008 were designed to improve access to contraceptives and other
    preventive services, while two new laws continued existing restrictions
    on state family planning funds.

  • Wisconsin became
    the 16th state to require hospitals to provide medically accurate and
    unbiased information about emergency contraception to women who have
    been sexually assaulted. Hospitals must also provide the medication
    upon request. (See Emergency

  • A new law in Colorado
    clears the way for the state to seek federal permission to expand Medicaid
    eligibility for family planning services. A fiscal note accompanying
    the bill indicates that the state Medicaid agency expects to seek to
    raise the ceiling to 200% of the federal poverty level. Currently, 27
    states have similar programs in place. (See Medicaid
    Family Planning Eligibility Expansions

  • Iowa enacted a provision
    requiring health plans issued in the state to cover the HPV vaccine
    if they include coverage for any immunization or vaccination. Four states
    (Colorado, Illinois, Nevada and New Mexico) adopted similar provisions
    in 2007.

  • Also in 2008, Colorado
    and Michigan re-enacted long-standing restrictions on state family planning
    funds. The Colorado law prohibits state family planning funds from going
    to organizations that provide abortion services with their own funds.
    Michigan barred the use of state family planning funds for abortion
    services, including counseling and referral. Two other states have similar
    restrictions. (See State
    Family Planning Funding Restrictions

Sex Education 

Unlike in 2007, when four states
took steps related to sex education, including measures in two states
to expand access to comprehensive sex education, the subject did not
elicit significant attention in 2008. In fact, the only enacted measure
related to sex education was one in New Hampshire, which permits a student
to be excused from health or sex education for religious reasons. With
this new law, 36 states and the District of Columbia permit students
to be excused from sex education classes. (See Sex and STI/HIV

For summaries of major state
legislative actions in 2008, click

For a table showing legislation
enacted in 2008, click

For the status of state law
and policy on key reproductive health and rights issues, click here.

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.


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