Abortion and Human Rights: Will Brazil be the Next Nicaragua?

Sonia Correa

Brazilian women have seen important setbacks in regard to access to abortion in recent years. A clear turning point was September 2005, when a law aimed at reforming existing punitive legislation on abortion was presented to the Congress without the required support of the executive branch.

Editor’s note: A correction was made to this article at 1:20 pm on Thursday, June 17th to remove reference to “fetal abnormalities” as a condition under which abortion is allowed in Brazil. This condition, originally drawn from the TIME magazine article referenced below, is, according to the author, not a legal exception in Brazil.

This article is an updated and expanded version of a paper originally published by Sexuality Policy Watch. See other recent coverage of sexual and reproductive health politics in Brazil, including a recent piece in TIME magazine, and on Rewire.

Brazilian women have seen important setbacks in regard to access to abortion in recent years. A clear turning point was September 2005, when a law aimed at reforming existing punitive legislation on abortion—which currently is illegal except in cases of rape or when the mother’s life is in danger–was presented to the Congress without the required support of the executive branch. A few months earlier the government, responding to a recommendation of the First National Conference on Women’s Policies (2004), had in fact called for the formation of a tripartite commission to revise the penal code on abortion.  But when, in August 2005, the Commission delivered a draft bill to legalize abortion, it got caught up in the complexities of a full-blown corruption crisis, (read the Pope’s Visit to Brazil). The present scramble around the III National Program for Human Rights Policies is, therefore, just another chapter in this ongoing saga.

One good thing is that the current controversy has allowed for abortion to be discussed widely in Brazil, and, for the first time, as a human rights issue. It is not trivial either that the macro-level political bargains triggered by recent political controversies have situated abortion as the “other” problematic issue to be negotiated among key actors (in addition to the Commission of Truth, proposed by the III National Program for Human Rights to revise state crimes committed during dictatorship).

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To understand the meaning and complexity of the debate underway, it is worth reviewing at least two key elements of contemporary Brazilian history. The first is that, as in other countries in Latin America, the progressive Catholic Church of the time was a key defender of political and civil rights during dictatorship. The conservative Catholic Church that emerged after the election of John Paul II as the Pope in 1979, however, systematically contested all advances in the area of sexual and reproductive rights (particularly regarding abortion) that emerged as a result of democratization.

The resistance of the Brazilian military and of some sectors of the political elite to fully reviewing state crimes committed during the military regime is another key feature to be highlighted. In Chile, South Africa, and Peru (after the Fujimori authoritarian period), Commissions of Truth and Reconciliation were established. In Uruguay and Argentina, clear and sharp judicial review and punishment of military dictatorship crimes have also taken place and are still underway. But in Brazil, the 1979 Amnesty Law that “pardoned” those engaged in political and armed action against the regime has also forgiven state actors involved in human rights abuses and is consistently interpreted, by those resisting a full historical review, as a final and definite closure of the past.

However, in the mid-1990s, a Commission was established at the Ministry of Justice to search for missing persons and unidentified corpses and to financially compensate people who had lost family members, as well as people whose professional careers had been affected by political persecution. No full review of state crimes committed between 1964 and 1984, however, has been conducted. The objective of the Truth Commission proposed in the III National Program for Human Rights is to complete the difficult work of historical review and closure.

The III National Program for Human Rights by and large maintains and expands proposals contained in a previous program, which was adopted in 2002 (at the end of the Cardoso administration). But it also incorporates language coming from a variety of sources: existing legislation on human rights of specific groups (such as children and indigenous people); recommendations from the periodical National Conferences on Human Rights and other conferences that directly address human rights issues (such as the National Conferences on Health, on Women’s Public Policies, on Public Policies for the LGBT population and so forth); recommendations from international conventions; and other relevant international documents.

The III National Program for Human Rights recognizes that human rights are indivisible in that they encompass civil, political, economic, and social rights. The document covers a wide range of subjects such as: food security; the right to health and within it, further regulation of private health insurance; prison conditions and rights of incarcerated persons; judicial procedures regarding rural property occupation by landless peasants; genetically modified seeds; social accountability of media outlets; same-sex civil unions; and the display of religious symbols in public buildings.

In relation to abortion specifically, a proposal to revise existing laws punishing abortion — derived from the Beijing Platform — was already included in the 2002 program. The language adopted in the new text is based on the First National Plan for Women’s Policy (2004) and calls for the decriminalization of abortion to guarantee women’s autonomy over their bodies.

The document, though prepared by the National Special Secretary for Human Rights, was revised by all concerned ministries and signed by their respective ministers. However, when its content became public and was absorbed by key political actors, harsh controversies erupted within government itself on various parts of the document. Two ministers openly expressed their disagreement with the text. The minister of agriculture complained about the plan’s call to ban genetically modified seeds. Most critically, the minister of defense, who is a civilian, publicly declared that the military did not accept the language adopted in relation to the commission of truth, as it exclusively referred to crimes committed by state actors, without recognizing the human rights abuses committed by political dissidents.

Concurrently, other actors raised their voices against other critical areas. Representatives of rural landowners complained about the judicial rules concerning land occupation, private health insurance companies argued against proposals regarding ceilings in premium costs for aging people, and the media contested the call for greater social accountability. Most importantly, the Catholic Church immediately expressed its full opposition to the proposals on the legalization of both abortion and same-sex marriage, as well as the proposal about the display of religious symbols in public edifices. The main complaint of Catholic Bishops was that the Program went against “defense of the right to life.”  While a large number of content areas of the third program were contested and discussed, it is significant that the debate very quickly crystallized predominantly around the truth commission and abortion.

In response to the reaction of the minister of defense, speaking on behalf of conservative voices within the military, the National Secretary of Human Rights threatened to resign, and President Lula very quickly called a closed meeting between the two competing ministers to find a solution to the crisis. After the meeting, a new presidential decree was immediately published. It changed the language originally adopted by the Program, eliminating the terms “political repression” in order to dilute the exclusive focus on state violations. This quick move has muted, at least for the time being, the conservative military reaction.  The public debate on the matter has also made clear that the Truth Commission has wide public support. However, it is too soon to claim that the controversy is fully resolved, as it may resurge when the subject is debated at the level of Congress.

The dynamics of the political bargaining were, however, completely different in the case of the abortion debate. While the “truth commission problem” was being processed, the Secretary of Human Rights declared that the text on abortion should be changed because, he said, the justification used for legalizing abortion – to “guarantee women’s autonomy” – was a feminist argument and did not reflect the government’s position on the subject. Although he did not explicitly state what the official position was, previous episodes concerning abortion suggest that it would involve framing abortion as a major public health problem (and eventually maintaining the law as it stands today).

Immediately after this declaration, the Secretary met with the representative of the National Conference to discuss the matter. Almost a month elapsed before he met with the feminist organizations representing the voices of those who support abortion legalization.  Unsafe abortion is indeed a major public health problem in Brazil: Roughly one in five Brazilian women have an abortion, and 200,000 women each year are hospitalized due to complications from unsafe abortion.

Right after the National Secretary on Human Rights stated that the government would seek support for the Program from the international human rights system. In fact, the UN High Commissioner Navi Pillai, who recently visited Brazil, has already published an article in the Brazilian Press (Folha de São Paulo) openly supporting the creation of the Truth commission. But the next governmental step would be to ask UNESCO to consider the dictatorship archives and a patrimony of humanity and to have the Office of the High Commissioner assess the consistency of the III Program with existing international human rights law. Resorting to international human rights instruments to defend the III Program was certainly a quite remarkable step. But it should be also noted that while existing international instruments provide strong supporting arguments for those topics relating to political persecution and measures of truth investigation, the identification of international human rights language on sexuality and abortion is more complex. It will require the content of international conference documents and of recommendations issued by human rights surveillance organizations to be made visible and to be valued.

Meanwhile, feminists and other sectors have mobilized countrywide to support the Program, particularly around International Women’s Day.   But on March 16th, the press announced that the National Secretary on Human Rights had declared that three items included on the plan would be eliminated or modified: the recommendation on religious symbols in public buildings, the rules concerning land occupation, and, evidently, the language on legalization of abortion.  Not surprisingly, the next day, the police closed an abortion clinic located in a poor area of downtown, and health professionals and clients (some of them bleeding) were criminally indicted.

Petitions and protests against the announced decision quickly circulated. Feminist organizations gathered around the The Brazilian Initiative for the Right to Legal and Safe Abortion (Jornadas por um Aborto Legal e Seguro) and signed a public letter making it clear that they would not accept any change in the language adopted by the III Program. On March 19th, in a public event organized by the Public Defenders’ Office in Rio to discuss the III Program, the Secretary said that, in relation to the abortion debate, he had consulted not only Bishops but also Catholics for Choice. Most importantly, he informed the audience that the call for decriminalizing abortion would not be eliminated but that language would be modified to be consistent with what is written in the 1995 Fourth World Conference on Women Beijing Platform of Action (paragraph 106k, which combines paragraph 8.25 of ICPD with the recommendation that countries must revise punitive legislation). But in light of the constant back-and-forth of the controversy, this may not be the end of the debate.

On April 27th the National Secretary of Human Rights declared that the language on abortion would be amended as to address it as a major public health problem and to recommend de-criminalization along the line of Beijing paragraph 106k.  Then on the 29th the Supreme Court finally decided the case presented by the National Bar Association (OAB Brasil) claiming that torture and killing, being crimes against humanity, should be excluded from the rule of general pardon defined by the 1979 Amnesty Law. Seven judges voted against the claim preserving the therefore the “closure” nature of the Amnesty Law, which was adopted before the 1988 Constitution.  In the words of Marcos Nobre, a sharp political analyst and op-ed writer:

[The Supreme Court decision] considered a law approved under the military dictatorship a foundational source of the present democratic order.  This attitude is more than paradoxical. It is and authentic institutional suicide.                   

The entire episode is revealing of the complex contradictions of the Lula administration, which are not always easily understood by those who do not experience the daily dynamics of domestic politics. These contradictions involve both internal, high level tensions and big gaps between the positions expressed by civil society voices in participatory policy mechanisms – such as international conferences – and official positions that are usually framed in terms of economic interests and electoral bargains. Trends and skirmishes observed between January and April revealed, once again, how legalization of abortion was deeply caught within the complex webs of a major political trade-off in which the real prize at stake was the Commission of Truth. It is not trivial either that the Catholic Church, which was a major advocate for political rights during dictatorship, is once again fully opposing abortion, same sex marriage and secular rules about the display of religious symbols. And most principally the Supreme Court decision is not a good sign in terms of the future of Brazilian democracy in its broader sense.

Yet even despite the positive signs seen in late April, in fact, further regression in relation to abortion was yet to come. On May 13th, President Lula finally signed a new decree altering the text of III National Program for Human Rights (PNDH3), in relation to decriminalization of abortion, the prohibition of religious symbols display in public buildings, social accountability of media, procedures regarding the mediation of agrarian conflicts. Particularly in respect to abortion the new text simply states, “abortion is considered as a public health problem in relation to which access to health services is to be ensured.”

Then on May 19th the Commission on Family and Social Security (CSSF) of the House of Representatives approved a legal provision entitled the “Statute of the Unborn.”  The definition of the “unborn” in the approved text includes both in uterus and in vitro embryos. If approved, the provision may imply the a judicial interpretation that human life begins at conception and this will lead to the elimination of article 128 of the Penal Code that defines the two cases in which abortion is permitted: rape and women’s life risk.  An agreement reached among the members of the Commission at the end of the debates also led to adoption of complementary and convoluted additional text, in which it is stated that, if the provision is approved, Article 128 will not be changed. This last minute maneuver aims at appeasing the electorate, as all opinion polls performed in Brazil in the last decade that indicate that society does not want to see any further erosion in the right to abortion. 

The approval of the Statute follows a well-known pattern, as since 2005 whenever the executive branch back-pedals, anti-abortion forces make a jump forward.  Despite the last moment maneuver to preserve article 128, the preliminary provision also makes clear that the main goal of anti-choice forces is to further restrict the law. This is not a surprise either.  In 2007 when the Pope visited Brazil a Brazilian priest who is a member of Human Rights International announced publicly that their goal was to make Brazil “a big Nicaragua.”

The text of the provision nears absurdity. For instance: what can be the possible interpretation of Art. 12 of that states that  It is forbidden for the State and private individuals to cause any injury to the unborn by reason of acts performed by any of the parents.”  Or what to say about an article in the provision, which establishes public-funded “incentives” for women who become pregnant as a result of rape not to terminate the pregnancy. The incentives include antenatal assistance and psychological support; state facilitation for the child to be placed for adoption, in case the woman agrees; and provisions to compel the ‘father’ of the unborn to pay “alimony”; in case the ‘father’ is not identified, “alimony” will be provided by the state.

Feminists have strongly reacted to these proposals, because if adopted, they will mean state legitimization of sexual violence, complicity with the crime of rape and total disregard the physical and psychological effects of rape.  Some voices have also recalled that inducing women to take to term a pregnancy resulting from rape can be interpreted as forced pregnancy and be equated with torture. 

The Finances and Tax Commission will now analyze the budgetary and financial implications of the provision. Subsequently, the Commission on Constitution, Justice and Citizenship will assess its constitutionality and make revisions before sending it to be voted by the House. It is vital that the international sexual and reproductive health and rights community pays closely attention to the rocky road that lies ahead if for no other reason than because Brazil today is an emerging power. 

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.

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.