As Jodi Jacobson reported earlier today, public hearings were held in Kansas today for the abortion regulations created by the Kansas Department of Health and Environment. I presented the following testimony on behalf of Kansas NOW.
I’m the State Coordinator for Kansas NOW, which means that I stand before you today as a grassroots women’s rights activist and equality advocate. I stand before you today, as a voice for a whole lot of Kansas women who cannot be here to tell you how they feel about these regulations. These women want me to express what they think about the possibility of losing their access to existing abortion clinics within their state. These are good women who have either used these clinics personally, or simply take comfort in knowing that these facilities exist should they need them.
While I may not be a public health professional, my understanding as a graduate student of Public Administration is that government enacts regulations when a public need for protection presents itself, in the case of Kansas Department of Health and Environment, when some public health concern or externality needs to be addressed. As employees of an agency that is supported by public tax dollars, deliberative, non-ideological processes are to be expected, especially with regard to the health and well being of the citizens they work for. I do not believe that this regulatory process met those deliberative, non-ideological tenets.
I certainly do not believe that the health of Kansas women has been furthered by the temporary regulations presented by the KDHE. I do believe that the women of Kansas need to be protected. They need to be protected from overeager political majorities that unduly hasten regulatory processes, putting unnecessary demands upon our health care agencies and putting women’s legal health care access at risk.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
I was in attendance at the hearing held in Topeka on June 30, 2011 before the committee that approved the temporary regulations that closed two of the three abortion clinics in the state. What I heard from the Secretary of the KDHE, Robert Moser, was a story about the frenetic departmental rush to comply with the legislative mandates set forth. He spoke of cancelled vacations, working weekends and nights, all toward their effort of mere compliance. What I did not hear uttered even once was exactly how Kansas women would be better off from the regulations. There was no talk of expected outcomes or pride in improved processes, only a sense of weary accomplishment as they presented the product of their agency all nighters.
Women deserve more respect than to be used as pawns in a game of political posturing via the regulatory processes of the very agencies that our tax dollars support. We had thought that Kansas had had enough of the days of public offices and agencies being controlled by extremists such as our former Attorney General Phil Kline, but it seems we have come back around to this same place again. This regulatory process has been a sham, a shame and an embarrassment for this state and has done nothing to improve the health of the women who live here.
I urge the KDHE to appeal to the legislature to request more time for deliberation and research toward the intended outcomes from potential restrictions and amend the temporary regulations to remove the unnecessary, overtly biased regulations contained within.
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.
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. Hellerstedtstruck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear.
Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.
More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.
As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.
But the Assault Continues
Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:
Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.
The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:
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.
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.
Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.
Reproductive health physicians are nervously awaiting the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt this week. Rightly so: the outcome of this case will dramatically affect the ability to access safe, legal abortions in Texas, and could extend to other states with restrictions that are similar to HB 2, the law at the heart of the case.
But we also recognize that even if we are able to celebrate a favorable outcome in the case, the battle for reproductive health will continue in dozens of states across the country.
The two provisions of HB 2 before the Court are presented by supporters as improvements to abortion safety and protective of women. But the reality is quite contrary to this. For one thing, abortion is already one of the safest medical procedures; women do not need to be “protected” by politicians.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
For another, the requirements imposed by the law—mandating that abortion providers have admitting privileges at a local hospital and forcing abortion facilities to meet ambulatory surgical center (ASC) standards—do not directly or indirectly have a positive affect on the care provided before, during, or after abortion.
In practice, these targeted regulation of abortion providers (TRAP) requirements only restrict access to abortion. Few clinics have the resources needed to make the costly (and medically unnecessary) updates needed for ASC standards, and physicians can be refused hospital admitting privileges for a wide range of reasons unrelated to the quality of care that they provide.
Instead of improving care, TRAP law restrictions cause clinics to close, and prevent qualified, trained, experienced, dedicated health professionals from providing abortions to patients who need them. Fewer abortion providers means that some will have to wait much longer for their abortions, delaying care until later in pregnancy when the risk of complications—although still small—is increased.
TRAP laws also make abortion completely inaccessible for some women. The reasons can be complicated, involving factors such as geographical limitations, prohibitive cost of travel, and inability to obtain child care or take additional time off work. Regardless of the cause, the result is the same: Abortion restrictions force some women to carry their pregnancies to term, actually exposing them to greater risks associated with pregnancy and childbirth.
Even as our eyes are turned toward the Supreme Court, we must remember that Texans are not the only ones facing restrictions on their ability to access abortion care. Similar TRAP laws have been passed in other states, and in some cases, their implementation will depend on the outcome of Whole Woman’s Health. In addition, lawmakers have adopted a variety of creative approaches to limit abortion access.
In Indiana, state legislators passed a bill that would ban abortion for specific reasons; that law is awaiting judicial review. In Utah, a new law forces doctors to provide anesthesia to the fetus in an abortion performed after 20 weeks, despite there being no medical method for doing so and despite robust evidence that at that stage in development, a fetus does not feel pain. In Kansas and Oklahoma, state lawmakers banned physicians from using the preferred procedure for second-trimester abortion, subjecting women to less-than-standard methods; despite these laws currently being enjoined, five other states have followed suit.
None of these attacks are grounded in medicine, none of them are supported by the American College of Obstetricians and Gynecologists (ACOG) or the American Medical Association, and unfortunately, none of them would be struck down by a favorable decision from the Supreme Court. Even if access is restored in parts of Texas, advocates cannot rest on our laurels.
OB-GYNs do not have to be abortion providers in order to see the significant effect that an unintended pregnancy can have on overall health and well-being. We do not have to provide abortions ourselves in order to recognize that access to abortion is essential for the patients whom we provide care for every day.
As an OB-GYN and the president of ACOG, I remain hopeful and optimistic that we will see access to abortion restored and protected nationwide. But I urge reproductive health advocates to remain vigilant as state politicians continue to strip away access to care.