State Trends: Abortion, Personhood, Sex Ed and STIs

Rachel Gold and Elizabeth Nash

With the legislative year well underway, laws to establish fetal personhood, mandating medically accurate sex ed, and treating partners for STIs are on the move.

With the legislative year well
underway, some interesting trends are beginning to emerge in a number
of states. These include attempts in six states to declare a fetus a
person from the moment of conception-measures that not only aim to
ban abortion, but would affect contraception as well (more on this topic
below).   

By the end of March 2009, a
total of 704 measures related to sexual and reproductive health had
been introduced in the 49 legislatures that have convened so far this
year, and 11 new laws had been enacted in five states. One of the laws passed allows the
provision of treatment for sexually transmitted infections (STI) for
a patient’s partner (Utah), while two increase access to emergency
contraception (Utah and Virginia). The remaining eight laws are all
related to abortion. These laws: 

  • ban "partial-birth"
    abortion (Arkansas);
  • restrict post-viability
    abortions (Utah);
  • require abortion
    clinics to post signs about coercion (Kansas and Ohio) or to inform
    women about the possibility that a fetus can feel pain (Utah);
  • require providers
    to give women a list of organizations that would provide a free ultrasound
    and offer them the opportunity to view the image if an ultrasound is
    performed in preparation for an abortion (Kansas);
  • authorize funding
    for crisis pregnancy centers from the sale of "Choose Life" license
    plates (Virginia); and
  • create a fund to
    cover the state’s abortion litigation costs (Utah).

 

In addition, we are seeing
three major new trends emerging in states across the nation: 

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1. 
Establishing Fetal Personhood
 

Legislators in six states (Alabama,
Georgia, Maryland, Montana, North Dakota and South Carolina) have introduced
measures similar to one that was soundly defeated by voters in Colorado
last year that would have declared a fetus a person from the moment
of conception. This strategy is being pursued by an emerging far-right
wing of the anti-abortion movement, in explicit rejection of what is
perceived as a willingness on the part of some mainstream organizations
to push for restrictions that would reduce abortion rather than ban
it entirely. 

[Note: The measures in Alabama,
Maryland and South Carolina are still pending, while those in Montana
and North Dakota were each passed by one chamber of the legislature
but then defeated in the second chamber; the Georgia legislature adjourned
for the year without taking any action on its bill.]  

Although they all seek a similar
end, the measures would take different routes to achieving their goal.
The bills introduced in Georgia, Montana and Maryland would put a measure
on the ballot in 2010 to establish fetal personhood, while those in
Alabama, North Dakota and South Carolina would formally interpret existing
state statutory or constitutional provisions to extend personhood to
a fetus. The wording of the measures differs slightly as well. The bills
in Alabama, Georgia and South Carolina would define a fetus as a person
from the "moment of fertilization." The Maryland and Montana bills
would apply to a fetus at "any stage of human biological development,"
and the North Dakota bill would apply to "any organism… that possesses
the human genome." Nonetheless, all of the measures would affect contraception
as well as abortion. 

2. 
Mandating Medically Accurate Sex Education
 

Thirty-six bills have been
introduced so far this year in 20 states that would require medical
accuracy in school sex education. (In 2008, 20 such measures were introduced
in 12 states.) 

Measures have already been
approved by a legislative chamber in Hawaii and Oregon. A bill approved
by the Hawaii Senate in February would require that all sex education
in the state include information on both abstinence and contraception
and be medically accurate and age-appropriate. The legislation specifies
that the instruction would have to be in accordance with "accepted
scientific methods and recognized as accurate and objective by professional
organizations and agencies with expertise in the relevant field, such
as the federal Centers for Disease Control and Prevention (CDC), the
American Public Health Association, the American Academy of Pediatrics
and the American College of Obstetricians and Gynecologists."  

The measure approved by the
Oregon House in March would codify existing state regulations requiring
that sex education be medically accurate. It would also replace the
regulations’ mandate that abstinence be described as "the most safe
and responsible sexual behavior" for unmarried individuals with a
requirement to teach abstinence as "the most effective method" of
pregnancy and STI prevention for monogamous adults. 

Twelve states currently require
that the information provided in sex education classes be medically
accurate. In 10 of these states (California, Colorado, Georgia, Iowa,
Maine, Michigan, Oregon, Rhode Island, Utah and Washington), the mandate
applies to all sex education in the state. In two states (Alabama and
North Carolina), the requirement applies only to the information provided
about contraception.   

3. 
Treating Partners for STIs
 

In 2006, the CDC recommended
that health care providers treating patients for chlamydia and gonorrhea
also provide treatment for the patient’s partner, even if he or she
has not been seen by the provider.  Between 2006 and 2008, six
states (Arizona, California, Iowa, Louisiana, Minnesota and New York)
have adopted laws, and three states (New Mexico, North Dakota and Tennessee)
have promulgated regulations to allow physicians to write prescriptions for a partner, even if the provider has not seen the partner. Some of the laws also require that patients take home information for their partner, such as fact sheets about infection, treatment, and possible allergic reactions to medication. This year,
similar measures have been introduced in eight states (Illinois, Missouri,
Montana, Nevada, Oregon, North Dakota, Utah and Vermont); the Utah measure
was enacted. 

Bills pending in three states
(North Dakota, Nevada and Oregon) would allow partner treatment for
all STIs, while those in three others (Illinois, Missouri and Montana)
would apply to treatment for chlamydia and gonorrhea; the bill pending
in Vermont would apply only to chlamydia treatment. The new Utah statute
applies to chlamydia and gonorrhea, bringing to 10 the number of states
explicitly permitting partner treatment for at least some STIs. 

Click here for additional information
on: 

State
reproductive health legislative developments this year

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Abortion

Iowa GOP Legislator: Ending Legal Abortion ‘Impossible’ Without ‘Personhood’ Laws

Teddy Wilson

GOP-backed "personhood" laws have been an unmitigated failure. Voters in state after state have rejected by wide margins personhood ballot initiatives, and personhood bills have failed to gain traction in many legislatures.

An Iowa Republican plans to introduce a measure defining life as beginning at conception in response to the U.S. Supreme Court’s ruling striking down an anti-choice Texas law, which has limited states’ ability to restrict abortion care access.

State Sen. Jason Schultz (R-Schleswig) told IowaWatch that the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt proves that the anti-choice movement’s attack on abortion rights is not working.

“The Supreme Court decision reinforced that incrementally ending abortion is impossible,” Schultz said. “You either have it or you don’t.”

So-called personhood laws seek to classify fertilized eggs, zygotes, embryos, and fetuses as people, and to grant them full legal protection under the U.S. Constitution.

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GOP-backed “personhood” laws have been an unmitigated failure. Voters in state after state have rejected by wide margins personhood ballot initiatives, and personhood bills have failed to gain traction in many legislatures.

Personhood bills were introduced this year by Republican lawmakers in Alabama, Colorado, Maryland, Mississippi, Missouri, and Rhode Island.

Rachel Lopez, a spokeswoman for Planned Parenthood of the Heartland, told IowaWatch that personhood measures are routinely introduced in Iowa but have failed to gain traction in the GOP-dominated legislature.

“Although we have not yet seen the details of this impending effort, we are confident that it also will fail to advance,” Lopez said. “Personhood bills are a waste of both time and taxpayer dollars, as they have failed time and again in Iowa and other states.”

Iowa lawmakers this year introduced SJR 2001, a joint resolution proposing an amendment to the state constitution specifying that the document does not secure or protect a fundamental right to abortion care.

SJR 2001 was referred to the senate rules and administration committee, but never received a hearing or a vote.

Schultz, who was elected to the state senate in 2014 after serving in the house, has sponsored or co-sponsored several anti-choice bills while in the state legislature, including personhood measures.

SF 478, sponsored by Schultz during the 2015 legislative session, would have defined “person” when referring to the victim of a murder, to mean “an individual human being, without regard to age of development, from the moment of conception, when a zygote is formed, until natural death.”

Mark Kende, director of Drake University’s Constitutional Law Center, told IowaWatch that Schultz’s proposal would not survive in the courts.

“He can try to pass that legislation but it certainly wouldn’t trump the federal Constitution,” Kende said. “Even if that language got into the state constitution it can’t defy three Supreme Court decisions in the last 40 years.”

Gov. Terry Branstad (R) told IowaWatch that he could not support Schultz’s proposal.

“I’m pro-life and I want to do what I can to encourage things that can protect the lives of unborn children,” Branstad said. “Yet I also recognize that we have to live with the restrictions that have been placed on the states by the courts.”

Branstad signed many of the state’s laws restricting abortion access that came up during the latter part of his first term as governor.