Another Busy Year: State Legislative Trends on Reproductive Health and Abortion in 2009

Rachel Gold and Elizabeth Nash

More than 900 measures on reproductive health and rights were introduced in the states and the District of Columbia in 2009, and by year’s end, 77 new laws had been enacted in 34 states and DC. (This is more than twice the 33 new laws enacted in 20 states in 2008.)

Although state legislatures expended considerable energy in
2009 grappling with the consequences of the economic downturn, they nonetheless
found time to pay significant attention to issues related to reproductive
health and rights. In total, more than 900 such measures were introduced in the states
and the District of Columbia, and by year’s end, 77 new laws had been enacted
in 34 states and DC. (This is more than twice the 33 new laws enacted in 20
states in 2008.) While the new abortion-related laws are overwhelmingly
restrictive, states did take significant steps to promote reproductive health
by mandating that sex education be comprehensive as well as medically accurate,
expanding access to emergency contraception and allowing a healthcare provider
to prescribe treatment for a patient’s partner for STIs.


Over the course of the year, 18 states enacted 34 laws
related to abortion. Arizona adopted a massive omnibus measure that essentially
revamps abortion policy in the state. The new law requires in-person counseling
and a waiting period prior to an abortion, tightens restrictions on minors
seeking an abortion and expands the right to refuse to participate in abortion-related
services; most of the provisions are not in effect due to ongoing litigation.
Passage of the measure is widely attributed to the replacement of longtime pro-choice
Gov. (and now Secretary of Homeland Security) Janet Napolitano (D), who had vetoed
similar bills in the past, with antichoice Gov. Jan Brewer (R).

Five states enacted laws mandating counseling and waiting
periods before an abortion can be performed, with four of these states amending
current counseling requirements. A total of 34 states have
a law of this type
. Arizona was the only state to move to institute an
entirely new law, adopted as part of its omnibus measure; if implemented, the
law would require that counseling be conducted in person at least 24 hours
prior to an abortion, thereby necessitating that a woman make two trips to the
provider in order to obtain the procedure. (The in-person counseling requirement
is currently blocked pending litigation.)

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Seven other states have similar requirements, which have
been shown to pose
significant access barriers for women seeking services
. The new law in Utah,
meanwhile, requires that a woman seeking an abortion after 19 weeks’ gestation
be given information on the purported ability of a fetus to feel pain, and
measures adopted in Kansas and Nebraska require the provision of information on
the availability of ultrasound. In a particularly far-reaching step, the North
Dakota law requires that a woman seeking an abortion be told that the procedure
would “terminate the life of a whole, separate and unique human being.” A
similar provision was adopted by the Kansas legislature, but vetoed by Gov.
Mark Parkinson (D).

Legislators in 22 states introduced measures relating to the
provision of ultrasound as part of the preparation for an abortion. Three of
these measures were enacted, bringing to 16 the number
of states with ultrasound requirements
. Laws enacted in Kansas and Nebraska
require abortion providers to offer the woman the opportunity to see the image
if an ultrasound is performed. The new law in North Dakota requires providers
to offer women seeking an abortion the option to have an ultrasound.
Legislators in Connecticut took a somewhat different approach, enacting legislation
that limits ultrasound examinations to those that have been ordered by a
medical provider and conducted for a medical purpose.

Four states adopted measures addressing coerced abortions.
Laws enacted in Ohio, Kansas and North Dakota require abortion providers to
post signs informing women that they cannot be coerced into having the
procedure and encouraging women to contact the authorities or the clinic staff
if they feel pressured to have the procedure. As part of its omnibus abortion
law, Arizona prohibits coercing a woman to have an abortion; unlike several
other components that have been blocked pending litigation, this provision is
in effect.

Although measures relating to parental involvement for
minors seeking an abortion were introduced in 19 states, Arizona’s omnibus
measure was the only one to be enacted in 2009. The measure tightens the
state’s long-standing parental consent requirement by imposing specific
standards for judges to use when determining whether to allow a minor to obtain
the procedure without parental consent. It also requires that the parent’s
consent be notarized before the procedure may be performed. Enforcement of the
notarization requirement is blocked pending litigation, while the judicial
bypass provisions are in effect. Including Arizona, 34 states
require some form of parental involvement
before a minor may obtain an

Three states adopted measures relating to later-term
abortions. The newly adopted laws in Arkansas and Arizona mirror the federal
“partial-birth” abortion ban that was upheld by the U.S. Supreme Court in 2007;
including these new laws, 17 states have
similar bans on the procedure
. Utah amended its law that restricted
abortions performed after 20 weeks’ gestation to apply to abortions provided
after viability; including Utah, 38 states have
laws related to later-term and post-viability abortions
. A measure that
would have both banned “partial-birth” abortion and restricted all
postviability procedures was vetoed in Kansas.

Nine states took actions related to alternatives-to-abortion
services in 2009. Virginia authorized the sale of “Choose Life” license plates,
earmarking the profits to fund crisis pregnancy centers across the state; this
brings to 21
the number of states in which the plates are available
. Eight other states
continued funding alternatives-to-abortion services for another year as part of
their annual budget legislation. Budget legislation adopted in Iowa, Maryland
and Minnesota also continued long-standing prohibitions on public funding for

Three additional laws related to abortion were also enacted.
Oklahoma adopted a measure banning abortion for purposes of sex selection and instituting
intrusive abortion
reporting requirements
that require a woman obtaining an abortion to fill
out a lengthy questionnaire, the results of which could be made available on a
state Web site. As part of its omnibus law, Arizona moved to limit the
provision of surgical abortion services to physicians. Implementation of both measures
is blocked pending litigation. Finally, Utah enacted a new law establishing the
Abortion Litigation Trust Account to cover the cost of defending the state
against legal challenges filed against its abortion laws.

Contraception and

Over the course of 2009, legislatures in 13 states addressed
key prevention issues. Five states enacted measures specifically designed to
expand or protect access to contraception. In an explicit move to protect
contraceptive services from state restrictions on abortion, Colorado adopted a
measure formally defining contraception as any method used to prevent a
pregnancy from occurring. Utah and Virginia adopted measures to expand access
to emergency contraception for women who have been sexually assaulted. The Utah
measure requires that women be given information about emergency contraception,
and provided with the medication on request, bringing the number of states with such
a mandate to 12
. Virginia enacted a new law that allows nurses, working in
collaboration with a physician, to provide all CDC-approved preventive
medications, including emergency contraception, to women who have been sexually
assaulted; no other state has adopted a similar policy.

Two states moved to expand insurance coverage for
contraceptive services. Wisconsin enacted legislation requiring private
insurance plans to include coverage of contraceptive services and supplies if
they already cover outpatient services and prescription drugs; including
Wisconsin, 27
states mandate contraceptive coverage
. For their part, Georgia and
Wisconsin moved to expand access under Medicaid. Georgia authorized the state
Medicaid agency to seek federal permission, known as a waiver, to expand
Medicaid coverage for family planning to women with an income up to 200% of the
federal poverty line; 21 states
have similar programs in operation
. Wisconsin, which already has a Medicaid
family planning expansion, authorized the state agency to seek federal
permission to expand its program to include men, as is done in eight other

Tennessee, however, adopted a measure to restrict access to
contraceptive services by giving county health departments priority in the
competition for state family planning funds. The measure potentially could
limit funding to other agencies, such as Planned Parenthood affiliates, which
would reduce access in those areas where Planned Parenthood centers are major
providers.  Three other
states—including Michigan, which has a similar priority system—extended their
restrictions on state family planning funding in the context of their annual
budget legislation. The addition of Tennessee brings to six the number of states that
restrict family planning funding

By all accounts, this was an extremely difficult year for
states as they tried to balance their budgets; no service or funding stream was
untouchable, including those related to family planning. In 2009, legislatures in seven states specifically debated
funding levels for family planning services. In three of these states
(California, Iowa and Minnesota), reproductive health advocates successfully
deflected proposed spending restrictions. In the other four states
(Massachusetts, Michigan, Montana and Washington), family planning programs were
cut substantially. It is widely expected that 2010 will present an even worse
fiscal situation, as states are expecting further declines in revenue that are projected
to continue until 2011.

Notwithstanding fiscal pressures, six states moved to expand
access to STI testing, treatment and prevention. Significantly, four states
(Illinois, North Dakota, Utah and Vermont) enacted legislation authorizing
expedited partner treatment, under which health professionals may treat a
patient’s partner for STIs, without requiring the partner to come in for a
clinical visit.  In addition,
Oregon adopted a measure directing the state to develop administrative rules
permitting expedited partner treatment. Including these five, 14 states now
permit expedited partner treatment.

In an attempt to reduce HPV infections, Oregon also enacted
a new law requiring health plans to cover the HPV vaccine for girls and women aged
11–26; five other states have similar requirements. The sixth state, Arkansas, moved
to make clear that minors may consent to STI testing and treatment on their
own. All 50 states and the District of Columbia allow minors
to consent to STI services

Sex Education

Sex education received widespread legislative interest in
2009, with legislators in 29 states introducing measures. By the end of the
year, four new laws were enacted. Hawaii and North Carolina enacted laws
requiring that all sex education in the state be medically accurate and include
a discussion of contraception; this brings to 17 the number of states that will
require a
discussion of contraception in sex education programs
. (The situation in
North Carolina was complicated, however, by the fact that the legislation unaccountably
retained a long-standing requirement for abstinence-only education, even as it
added the mandate for discussion of contraception.) The North Carolina law also
requires that sex education include discussions of STIs (including HPV),
healthy relationships, coercion and sexual abuse.

Oregon moved to codify into permanent law its existing
regulations requiring that sex education be medically accurate. Additionally,
the state changed its current requirement that abstinence be taught as the
“safest and most responsible sexual behavior” to a requirement that abstinence
simply be included in sex education programs. And finally, Washington enacted a
provision that would allow the state to seek federal funds for sex education
only if they would be used to fund comprehensive programs.

Pregnancy and Birth

Seventeen states took a variety of steps related to
pregnancy and birth in 2009. New laws in seven states (Colorado, Connecticut, Delaware,
Hawaii, Montana, Rhode Island and Texas) require providers to test a woman for
HIV during her pregnancy, unless she refuses. The District of Columbia joined
all 50 states in enacting a policy that
allows a parent to leave an infant with a health care provider
. Four states
moved to expand the reach of their existing laws. Arizona, Tennessee and
Washington expanded the facilities that may accept a relinquished infant, while
a law adopted in Illinois extends the age at which an infant may be
relinquished to 30 days.

Two states enacted new laws on fetal homicide. Legislation
adopted in Indiana allows for a separate murder charge to be filed if a fetus
dies as a result of an assault on a pregnant woman; the previous law had
permitted murder charges to be filed only if the fetus was viable. A new Oregon
law established that murdering or assaulting a pregnant woman when the
perpetrator is aware the woman is pregnant is a crime.

Alaska and Maine enacted laws that would allow women who
have had a miscarriage to obtain a “certificate of stillbirth” from the state.
Although they certify that a stillbirth occurred, these certificates are not
used for purposes of the states’ vital statistics systems.

Finally, North Dakota enacted a unique law affecting a minor’s
ability to consent to prenatal care. Under the law, the minor may consent to
care during the first trimester and for one subsequent visit; the minor’s
parents must, however, consent to any care received later in a minor’s
pregnancy. Including North Dakota, 37 states and
the District of Columbia have related laws
, although all the other states
permit a minor to consent to prenatal care throughout pregnancy.

Refusal Clauses and
Duty to Provide Services

Two states moved to expand their existing refusal
in 2009. The Arizona measure, which is blocked pending
litigation, would allow all medical providers, including pharmacists, and pharmacies
to refuse to facilitate or participate in abortions,
emergency contraceptive services or contraceptive services. (The previous law
had been limited to hospitals and physicians, and their employees.) The new law
in Louisiana permits anyone, including medical providers and pharmacists, to
refuse to provide abortions and dispense drugs for medication abortion. (The
state’s previous law had applied only to medical providers and hospitals.)
Unlike most refusal clauses, however, the new Louisiana law institutes
important patient protections. The law requires health care facilities to
ensure that patients can access services in a timely manner, even if a provider
refuses to perform the service; it also requires providers that refuse to
provide services to notify their employer and inform patients about their
refusal at the time a service is requested. Forty-six states have
abortion-related refusal clauses, and 13 allow providers to refuse to participate
in contraceptive services.

Wisconsin, meanwhile, moved to protect access to
contraceptives in pharmacies by enacting legislation requiring pharmacies to
dispense prescription contraceptives and emergency contraception in a timely
manner. The measure permits a pharmacy to refuse to dispense the medication
only if the prescription is fraudulent or contains errors or if the medication
is contraindicated for the patient. The new law brings to five the number of
states that protect
pharmacy access


  • For summaries of major state legislative actions in 2009, click here.
  • For a table showing legislation enacted in 2009, click here.
  • For
    the status of state law and policy on key reproductive health and rights
    issues, click

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

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.


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.


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.


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.