Surrogacy: The Next Frontier for Reproductive Justice

Miriam Pérez

Surrogacy is a complicated subject, to say the least. It involves many of the issues central to reproductive justice—bodily autonomy, a woman’s right to abortion, definitions of parenthood, and custody of children. It’s also an option increasingly relied upon by gay couples—usually gay men—to create families. It invariably brings up concerns about racial and economic justice when the majority of surrogates are low-income and many are women of color. It’s an issue on which few reproductive rights and justice groups are working on but one that deserves our close attention.

A change to this article was made on February 24, 2010 at 12:05 pm EST to include the name of a colleague organization that collaborated in support of a bill cited in this article.  A second change was made to this article at 2:52 p.m. Friday, February 26th, 2010 to correct an error in the description of state laws governing surrogacy.

“Surrogacy” is a term used broadly to describe situations in which a woman is enlisted to carry a child for someone else, with the intent of giving custody over to the intended parent(s) at the end of the pregnancy.

Surrogacy is a complicated subject, to say the least. It involves many of the issues central to reproductive justice—bodily autonomy, a woman’s right to abortion, definitions of parenthood, and custody of children. It’s also an option increasingly relied upon by gay couples—usually gay men—to create families. It invariably brings up concerns about racial and economic justice when the majority of surrogates are low-income and many are women of color. It’s an issue on which few reproductive rights and justice groups are currently working but one that deserves our close attention.

The Current State of Surrogacy: Legal inconsistencies

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A recent and closely-watched ruling on surrogacy by New Jersey Superior Court Judge Francis Schultz contributed to the hazy patchwork of court cases and legal precedence that guides how surrogacy is now dealt with in the United States. 

The U.S. is one of the few countries worldwide to have neither federal laws nor federal legal precedent restricting surrogacy, making the ease of surrogacy arrangements relatively attractive for couples who can not bear children. But the landscape is mixed. Some states’ laws and legal precedence completely contradict those of other states. What has resulted is an entirely unregulated surrogacy industry, with the majority of activity occurring in the few extremely permissive states.

A total of 17 states plus the District of Columbia (DC) have laws regulating surrogacy in one way or another.  Ten states have laws allowing surrogacy under some circumstances, including Arkansas, Florida, Illinois, Nevada, New Hampshire, North Dakota, Texas, Utah, Virginia and Washington. Six of those states limit compensation for surrogacy arrangements; four require court approval. Three states allow the surrogate time to change her mind or challenge the contract and six others require pre-screening for surrogates and intended parents.

Seven states and DC have laws that prohibit, penalize, or void surrogacy contracts.  The legislative regulations vary widely, but states that have no laws on the books can still regulate surrogacy via case law and legal precedent. California is one of the most permissive surrogacy states, even though there is no legislation with regard to the practice. New Jersey, on the other hand, is very unfriendly to surrogacy, also determined by legal precedent.

All the legal precedent that exists on the issue of surrogacy has come from a handful of cases where a dispute has arisen during a surrogacy agreement—often over the issue of custody of the resulting children. The majority of these cases involve the disputes that arise when the women serving as surrogates decide to contest custody after the children are born. 

The ruling by Judge Schultz dealt with just such an issue.

In 2005, Angelia G. Robinson entered into a contractual agreement with her brother, Donald Robinson Hollingsworth and his spouse Sean Hollingsworth. That agreement outlined what is referred to as gestational surrogacy—Robinson agreed to carry the pregnancy and then relinquish all parental rights for the child to her brother and his partner after the birth. After arriving at this agreement, they proceeded with the implantation of an egg from an anonymous egg donor, fertilized by sperm from Sean Hollingsworth and then implanted in Ms. Robinson’s uterus using invitro-fertilization.

The trio ended up in court when Robinson decided to file for custody of the twin girls she later delivered. Surrogacy agreements like these rarely go to court, according to Raegan Rasnic, a family law, adoption and assisted reproduction lawyer in Washington State. She explained that in situations where there is no compensation for the surrogacy—often known as “altruistic” or “compassionate” surrogacy—there is usually a relationship between the intended parents and the surrogate, which, in her view, mitigates the risk of disputes like the one in this New Jersey case.

The precedents set by the rare cases that do go to court make up the body of case law that affects the practice of surrogacy nationwide. The 1986 “Baby M” case is perhaps the most famous surrogacy case, and one of the first to bring the issue into the public discourse. Harold Cassidy, the same legal counsel used by Angelia Robinson in the case against her brother also brought this controversial case to trial in New Jersey.  In the Baby M case, Mary Beth Whitehead had agreed to serve as surrogate for a couple in exchange for compensation totaling $10,000. After she gave birth, Whitehead then decided to file for custody of Baby M, who had been created using Whitehead’s egg and the sperm of the intended father, William Stern.

The judge in this case ruled that the surrogacy agreement they had signed was void—based on the argument that the contract was in conflict with existing public policy. He stated, “There are, in a civilized society, some things that money cannot buy.” Stern was nonetheless eventually given custody of Baby M, because in situations where these contracts are thrown out, the judge must rule for custody based on the “best interest of the child,” and the court deemed Stern best suited to be the custodial parent.

Some surrogacy advocates had hoped the most recent NJ case would provide the opportunity to revisit the Baby M decision and New Jersey’s policy against surrogacy. Former bioethics professor at Brown University Dr. Jacob Appel had hoped the ruling might look more like the 1990 California decision, Johnson v. Calvert.  In that case, the California Supreme Court granted custody to the intended parents in a gestational surrogacy custody dispute. The Johnson case upheld the contract between surrogate and intended parents, and ruled that intent did matter in this situation.

Instead, Judge Schultz effectively upheld the original Baby M ruling, arguing that the fact that Robinson was only a gestational surrogate (meaning the embryo was not created with her egg) did not matter—the surrogacy contract is still considered void and Robinson is the legal mother of the twins. A further case will decide who will be given custody. This means surrogacy contracts, gestational or otherwise, have little hope of being honored in New Jersey, and couples will continue to seek out other jurisdictions that might look more favorably upon their arrangements.

Feminist Perspectives on Surrogacy

In addition to the legal complexity surrounding surrogacy, opinions about surrogacy vary widely. There seems to be little consensus, even among feminists or the reproductive rights community, about the issue. There are a number of questions at hand: whether surrogacy contracts should be upheld, whether compensation for the surrogate should be allowed, whether it matters where the eggs and sperm come from and who they belong to.

During the Baby M case, a group of well-known feminists, including Gloria Steinem and Betty Friedan, issued an amicus brief in 1987 in opposition to commercial surrogacy and surrogacy contracts. According to the New York Times, the brief argued:

“Legalizing a system that allows women, for a fee, to bear children for childless couples by being impregnated with the husband’s sperm will lead to the exploitation of women, especially poorer ones, by more affluent couples. ”As technology develops, the ‘surrogate’ becomes a kind of reproductive technology laboratory,” the brief states. ”In short, she has been dehumanized and has been reduced to a mere ‘commodity’ in the reproductive marketplace.”

The foundation and individual signers also argue that surrogacy violates the relationship between a mother and child recognized by the Federal and state Constitutions, as well as state policy and laws ”prohibiting the trafficking in human lives, particularly the buying and selling of infants and children.”

Barbara Katz Rothman, one of the original signers of the ‘87 amicus brief, states that her views have not changed. She explained, “If a woman is standing in front of me and is pregnant, the baby in her belly is hers. It doesn’t change depending on the sperm or eggs. Every pregnant person is the mother of the baby in her body.”

Katz-Rothman takes issue with the concept of surrogacy itself. She explained, “The language of surrogacy is wrong. She is not a surrogate. She is not standing in for someone else. It’s her baby. If you want to make an adoption agreement, make an adoption agreement. You can’t erase this woman like she doesn’t count. She’s not substituting for the mother of that baby—she is the mother of that baby.”

Katz Rothman’s perspective gets to the heart of the matter—the real issue here is the definition of motherhood, and whether that definition can be altered by a legal contract.

Appel disagrees with Katz Rothman. He believes legally prohibiting surrogacy, either commercial or altruistic, is sexist. In an article in the Huffington Post responding to the recent NJ decision, he explained:

“There are few occupations in the world for which either gender is uniquely qualified, yet, at least with our present technological limitations, serving as a surrogate fetal carrier is one of them. One of the only others is serving as a sperm donor — and, while sperm donation may be controversial as it pertains to offspring, one never hears legislators or courts worried that male donors will be “degraded” by the process. The double-standard is apparent.”

Upon further investigation into the arguments made by the legal counsel for the surrogates and the judges involved in the NJ anti-surrogacy cases, Appel’s argument of sexism appears to hold some weight. Both Harold Cassidy, the lawyer in the Baby M and Robinson cases, and Judge Schultz are openly conservative. Cassidy’s other current legal work focuses on defending extremely anti-choice initiatives. On Cassidy’s website he describes himself:

“Long known as an advocate and defender of the rights of pregnant mothers…he is widely recognized as the leading attorney in the nation in protecting pregnant mothers against the excesses and abuses of an abortion industry which violates the rights and interests of the women of the nation.”

The connection between anti-surrogacy and anti-abortion movements is not limited to Cassidy’s website and case history. Minnesota governor Tim Pawlenty, well known for his anti-choice views, vetoed legislation that would have legalized commercial surrogacy in the state.

Best Practices and Legislative Protections

In the fight against legalized commercial surrogacy, conservatives and anti-surrogacy feminists make unusual bedfellows. However despite both groups’ attempts to sway public opinion, as a practice surrogacy is gaining popularity in the US and has become much more socially acceptable than it was during the days of the Baby M case, according to Jessica Arons, Director of the Women’s Health and Rights Program at the Center for American Progress. In response to the increase in the practice, many lawyers and advocates who work on surrogacy issues remain neutral on the ethics of surrogacy, choosing instead to establish “best practices” for surrogacy agreements to ensure the rights of all parties are protected.

Kathryn Hinsch, founder and Board President of the Women’s Bioethics Project (WBP), is one of these advocates. Her Washington State group considers itself to be “solidly pro-choice with a critical optimism toward science.” WBP, in collaboration with Legal Voice, has been working with Representative Jamie Pederson a Washington state legislator who introduced a bill into the state Congress to legalize commercial surrogacy. Pederson is a gay man who had children with a surrogate, but had to go to California due to Washington’s laws. While WBP has maintained a neutral position on the bill, they’ve worked closely with Pederson to draft provisions within the proposed legislation, including: a requirement for robust informed consent, and a guarantee that surrogates could not be asked to give up their constitutionally protected reproductive rights and that no particular type of family would be discriminated against.

The legal, ethical, and public realm of surrogacy remains a murky landscape ever unfolding within courts and public opinion. What is evident is that developments in reproductive technologies will continue to test the limits of our definitions of parenthood and autonomy in this increasingly complex landscape of reproduction. It’s clear that the reproductive justice movement has a stake in this conversation.

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.

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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.

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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.

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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.