Utah Governor Gary Herbert has just signed the state’s proposed 72-hour mandatory waiting period for an abortion, making Utah the second state to attempt to force a woman to wait three days from her first visit to a clinic in order to terminate a pregnancy.
“The governor is an adamant supporter of rights for the unborn and felt the bill appropriately allows a woman facing such a decision time to fully weigh her options, as well as the implications of the decision,” Herbert’s spokesperson said.
The Republican Governor had stated prior to signing the bill that he would examine any legal issues once he received the legislation. Yet that didn’t stop him from passing into law a bill so flawed that the South Dakota version on which is was based was immediately placed under injunction, with a judge declaring it “likely unconstitutional.”
Besides forcing multiple visits to doctors and compounding costs in the name of “consumer protection,” the bill also does not allow any sort of exception for the waiting period in the case of fetal abnormality, a move the American Civil Liberties Union called “nothing short of cruel” as well as something that “could not survive constitutional scrutiny.”
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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.
The Center for Reproductive Rights filed a lawsuit Friday in federal district court challenging abortion restrictions passed by Louisiana lawmakers this year.
Despite facing a budget crisis, lawmakers passed seven laws that restricted access to reproductive health care, including abortion services, which the Center for Reproductive Rights claims “individually, and cumulatively” unduly restrict the “constitutional right to abortion.”
Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement that the laws collectively create a “web of red tape” that restrict women’s ability to access reproductive health care.
“Louisiana politicians are trying to do what the U.S. Supreme Court just ruled decisively they cannot, burying women’s right to safe and legal abortion under an avalanche of unjustified and burdensome restrictions,” Northup said.
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The lawsuit comes in the wake of the U.S. Supreme Court’s landmark decision that struck down two provisions of Texas’ omnibus anti-choice law known as HB 2.
Stephen Griffin, a constitutional law professor at Tulane University, told the Times-Picayune that the Supreme Court’s ruling on HB 2 was a “strong rebuke” of the Fifth Circuit Court of Appeals that upheld the law.
“I think the Louisiana law and any similar laws are going to be struck down,” Griffin said. “[Justice Ruth Bader] Ginsburg filed a reminder to courts that the five-member majority is going to be looking very skeptically at targeted regulation of abortion providers.”
Among the laws challenged is a law similar to Texas’ HB 2.
HB 488 requires that physicians providing abortion care be licensed to practice medicine in Louisiana and that they be board-certified or board-eligible in obstetrics and gynecology or family medicine. Previously, the law required that a physician be licensed to practice medicine in Louisiana and be currently enrolled in or have completed a residency in obstetrics and gynecology or family medicine.
Ben Clapper, executive director of Louisiana Right to Life, told the Times-Picayune that the Supreme Court’s ruling on HB 2 “does not predict a favorable forecast” for a similar law passed in Louisiana.
“The sad thing here as we see it is that these judges are replacing the elected officials and the legislative process as the determiner of what is medically important or not,” Clapper said. “We don’t believe that’s how it should be.”
Among the other laws challenged include those that restrict abortion procedures, require a waiting period before an abortion, impose restrictions on the handling of fetal tissue, and ban public funding for organizations that provide abortion services.
HB 1081 targets a procedure known as dilation and evacuation (D and E), which is frequently used during second-trimester abortions. A growing number of states have passed laws to ban the procedure, while statecourts have blocked such measures passed by GOP lawmakers in Oklahoma and Kansas.
HB 386 tripled the state’s waiting period for a pregnant patient seeking an abortion from 24 hours to 72 hours.
HB 1019 prohibits a person from intentionally performing or attempting to perform an abortion with knowledge that the pregnant patient is seeking the abortion solely because the “unborn child” has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.
HB 815 prohibits the buying, selling, and any other transfer of the “intact body of a human embryo or fetus” obtained from an induced abortion. The law also prohibits the buying, selling, and any other transfer of “organs, tissues, or cells obtained from a human embryo or fetus whose death was knowingly caused by an induced abortion.”
In addition, it “require[s] burial or cremation of remains resulting from abortion,” which acts as a de facto medication abortion ban, since an embryo miscarried at home, through medication abortion, cannot in practice be buried or cremated.
SB 33, similar to HB 815, prohibits the sale, receipt, and transport of fetal organs and body parts obtained from an induced abortion. Any person who violates this provision would be sentenced to a term of imprisonment at hard labor between ten to 50 years, at least ten years of which must be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than $50,000.
HB 606 prohibits entities that perform abortions from receiving public funding, unless the abortion was necessary to save the life of the pregnant patient, the pregnancy was a result of incest or rape, or the pregnancy was diagnosed as “medically futile.”
Most of the bills were passed with significant bipartisan support, and were signed into law by Gov. John Bel Edwards (D). Each of the laws is set to take effect on August 1.
”We are asking the district court to immediately block these unconstitutional laws,” Northup said.