Analysis Law and Policy

States Enact Record Number of Abortion Restrictions in First Half of 2011

Rachel Gold and Elizabeth Nash

In the first six months of 2011, states enacted 162 new provisions related to reproductive health and rights.

In the first six months of 2011, states enacted 162 new provisions related to reproductive health and rights. Fully 49 percent of these new laws seek to restrict access to abortion services, a sharp increase from 2010, when 26 percent of new laws restricted abortion. The 80 abortion restrictions enacted this year are more than double the previous record of 34 abortion restrictions enacted in 2005—and more than triple the 23 enacted in 2010. All of these new provisions were enacted in just 19 states.

A Mix of Old and New Strategies to Curb Access to Abortion Care

Counseling and waiting periods. Five states (IN, KS, ND, SD and TX) adopted laws related to abortion counseling and waiting periods in 2011, but a measure adopted by South Dakota at the end of March went significantly farther than those approved in other states. The law expands the pre-abortion waiting period to 72 hours, requires the woman to visit a crisis pregnancy center in the interim and mandates that abortion counseling be provided in-person by the physician who will perform the procedure. The counseling must include information on all known risk factors related to abortion, even when the information is not supported by mainstream medical opinion and is methodologically unsound. The law is currently not in effect, pending the outcome of a legal challenge.

Gestational bans. Legislators in 15 states introduced measures based on a law adopted in Nebraska last year. The provision bans abortions at and after 20 weeks’ gestation, based on the spurious assumption that a fetus can feel pain at that point. Under the measure, abortions may be performed after 20 weeks only if the woman’s life is endangered or if there is a risk of “substantial and irreversible physical impairment of a major bodily function.” So far this year, similar measures have been adopted in five states (AL, ID, IN, KS and OK; see State Policies on Later Term Abortion). These laws appear to conflict with Supreme Court rulings barring states from placing an undue burden on women seeking an abortion prior to viability, a point that occurs well past 20 weeks.

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Heartbeat” bill. Ohio is taking a different approach to achieve the same goal of banning abortion. In June, the House adopted a measure that would ban abortion once a fetal heartbeat can be detected, which usually occurs between six and 10 weeks’ gestation. The bill is awaiting action in the Senate.

Banning abortion coverage in new insurance exchanges. With plans for the implementation of health care reform underway in most states, the issue of insurance coverage for abortion was considered in 24 states, and restrictions were enacted in eight. In four states (KS, NE, OK and UT), the new laws restrict abortion coverage under all private health insurance plans. These restrictions will apply to coverage that will be available through the health exchanges being set up, as will new measures enacted in four other states (FL, ID, IN and VA). Including these new laws, eight states now restrict abortion coverage that is offered in any private health plan (including coverage through an exchange), and six others have restrictions that apply only to coverage through health exchanges (see Restricting Insurance Coverage of Abortion).

Medication abortion. Legislatures devoted significant attention to medication abortion for the first time during the 2011 session; measures were introduced in 14 states and enacted in six. Medication abortion has become an integral part of abortion care, now accounting for 17 percent of procedures provided in nonhospital clinics. Lawmakers considered two types of restrictions related to medication abortion:

  • Laws enacted this year in Kansas and Oklahoma require abortion providers to use a protocol that was specified by the FDA when the method was approved in 2000. This protocol has since been supplanted by a new one that, based on a substantial body of evidence, supports a more streamlined procedure under which women are given a lower dose of the medication and allowed to take the second dose at home, eliminating a second visit to the abortion provider. The new protocol also allows use of medication abortion up to 63 days’ gestation, rather than the 49 days permitted under the FDA protocol. A similar restriction that was enacted by Ohio in 2004 was recently upheld in federal court.

  • In an entirely new approach to restricting access to abortion, five states (AZ, KS, ND, NE and TN) banned the use of telemedicine for the provision of medication abortion, a procedure through which a woman can go to an abortion provider, receive counseling via videoconference from a physician in another location who then authorizes on-site staff to dispense the medication. Use of telemedicine in general has been growing rapidly in recent years, and is widely credited with expanding access to medical care in areas, especially rural communities, where services have often been inaccessible.

Family Planning Programs in the Crosshairs

For the first time in recent memory, state legislatures devoted significant attention to issues related to family planning in 2011. Much of this came in the context of state budget bills.

Holding the line in some states. Considering the historic fiscal crises facing many states, it is significant that family planning escaped major reductions in nine of the 18 states (CO, CT, DE, IL, KS, MA, ME, NY and PA) where the budget has a specific line item for family planning.

Deep cuts in others. The story, however, was different in the remaining nine states. In six (FL, GA, MI, MN, WA and WI), family planning programs sustained deep cuts, although generally in line with decreases adopted for other health programs. In the other three states, however, the cuts to family planning funding were disproportionately large: Montana eliminated the family planning line item, and New Hampshire and Texas cut funding by 57 percent and 66 percent, respectively.

Expanding Medicaid eligibility. It is especially noteworthy in this fiscal climate that two states moved to expand Medicaid eligibility for family planning. In Maryland, the legislature directed the state to extend coverage to individuals with an income up to 200 percent of the federal poverty level; the state currently has a limited expansion that extends coverage only to women following a Medicaid-funded delivery. The state received approval for this change from the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, at the end of June, and the expansion is expected to go into effect in January 2012. Washington State dramatically reversed earlier attempts to roll back its existing Medicaid family planning expansion entirely. The legislature directed the state to raise eligibility under the program from 200 percent to 250 percent of the federal poverty level.

Targeting providers. Nonetheless, five states moved to restrict funding to family planning providers, largely paralleling similar attempts made in Congress earlier in the year. These states took three distinct approaches:

  • Two states moved to restrict eligibility for family planning funds for providers that have any association with abortion. Indiana prohibits agencies that provide abortion from receiving any funding through the state, including Medicaid. (On June 30, a federal district court blocked enforcement of the legislation pending resolution of a legal challenge filed by the state’s Planned Parenthood affiliate.) Wisconsin prohibits agencies that provide abortion services or referrals from receiving funding through the state. Neither state is a Title X grantee, so Title X funds are not affected by the restriction. Planned Parenthood is the only agency that is affected in either state. These new measures join long-standing provisions in three other states (CO, OH and TX) requiring agencies that receive funding—either state family planning funds or federal block grant allotments—through a state agency to be separate from agencies that provide abortion services (see State Family Planning Funding Restrictions).

  • North Carolina adopted a measure that explicitly bans Planned Parenthood from obtaining funding, including Medicaid, through the state. Since North Carolina is a Title X grantee, the measure blocks Planned Parenthood affiliates in the state from receiving Title X funds. (Planned Parenthood of Central North Carolina has filed a lawsuit challenging the constitutionality of this provision; as of this writing, the measure remains in effect.)

  • Two additional states took aim at agencies that provide mostly family planning services, regardless of whether they have any connection to abortion. Kansas enacted a measure that limits the distribution of Title X funds to health departments, hospitals and community health centers; other types of family planning providers are not eligible. (Planned Parenthood of Kansas and Mid-Missouri has filed a legal challenge to the provision; as of this writing, the measure remains in effect.) Texas, meanwhile, adopted a measure that gives priority to health departments, community health centers and hospitals in the distribution of family planning funds, including Title X funds; other family planning providers may receive funding should any remain.

The 2011 state legislative season is rapidly drawing to a close, with only 10 state legislatures remaining in session. Additional states are likely to adjourn in the coming weeks.

For more information:

Guttmacher State Center

Chart of laws enacted in 2011

State Policies in Brief

Guttmacher’s video on “Abortion in the United States”

Commentary Contraception

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

Susan Wood

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Roundups Law and Policy

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

Jessica Mason Pieklo & Imani Gandy

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

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

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

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

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

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

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

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

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

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

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