Analysis Law and Policy

State Legislative Trends in Reproductive Health Law and Policy: Mid-Year 2012 Analysis

Rachel Benson Gold & Elizabeth Nash

In the first half of 2012, states enacted 95 new provisions related to reproductive health and rights. As was the case in 2011, issues related to abortion, family planning funding and sex education once again were significant flashpoints in many legislatures .

In the first half of 2012, states enacted 95 new provisions related to reproductive health and rights. Of the 44 state legislatures that have convened this year, only seven currently remain in session. As was the case in 2011, issues related to abortion, family planning funding and sex education once again were significant flash-points in many legislatures (click here for a more detailed version).

Abortion

So far this year, states have enacted 39 new restrictions on access to abortion. Although this is significantly lower than the record-breaking 80 restrictions that had been enacted by this point in 2011, it is nonetheless a higher number of restrictions than in any year prior to 2011. Most of the 39 new restrictions have been enacted in states that are generally hostile to abortion. For example, 14 of the new restrictions have been enacted in just three states—Arizona, Louisiana and South Dakota—that already had at least five such restrictions on the books. Fully 55% of U.S. women of reproductive age now live in one of the 26 states considered hostile to abortion rights.

This year is shaping up to be similar to last year in terms of the number of abortion restrictions that have either been introduced or approved by a state legislative chamber. What distinguishes 2012 from 2011, however, is that a lower proportion of the restrictions that were passed by one legislative body have become law—30% of the abortion restrictions passed by one chamber so far this year have been enacted, a significantly lower proportion than the 51% that had been signed into law by this point in 2011.

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There are several reasons for this trend, including that election-year legislative sessions tend to be shorter and more focused on bread-and-butter—rather than social—issues. In addition, legislatures in some states, including New Hampshire and Indiana, appear to be in near-total gridlock. At the same time, public push-back appears to have been successful in blocking action on some of the more extreme abortion restrictions. For example, the outcry against a measure that would have required a woman to undergo a trans-vaginal ultrasound prior to an abortion in Virginia is widely seen as having blunted the momentum behind similar provisions in Alabama, Idaho and Pennsylvania. Similarly, last November’s defeat of a constitutional amendment in Mississippi that would have conferred person-hood at fertilization appears to have helped derail similar provisions in Ohio and Oklahoma in 2012.

Nonetheless, three states have limited access to medication abortion, bringing to eight the number of states restricting access to the procedure. Three states have enacted unconstitutional  measures that ban abortion prior to fetal viability, either at 18 or 20 weeks post fertilization (which is the equivalent of 20 or 22 weeks after the woman’s last menstrual period), bringing to nine the number of states that have barred abortion after this point. In addition, four states have moved to limit coverage of abortion in the health exchanges that will be established as part of the implementation of the Affordable Care Act, bringing to 20 the number of states limiting abortion coverage in the exchanges.

Over the past six months, states also considered requiring abortion counseling and extended delays for women seeking an abortion. In the most extreme example, Utah in April became the first state to require that a woman seeking an abortion wait 72 hours between obtaining counseling and having the procedure; a similar measure was enacted in South Dakota in 2011, but was never implemented because of a legal challenge. Twenty-five other states have a waiting period, generally requiring that the woman wait 24 hours.

Also this year, two states adopted measures attempting to use the fetal heartbeat as a way to discourage a woman from seeking an abortion. A new law in Oklahoma requires providers to offer a woman the opportunity to hear the fetal heartbeat before an abortion is performed at or after eight weeks’ post fertilization (or 10 weeks after the woman’s last menstrual period). A new law in Louisiana requires providers to make the heartbeat audible when a woman is seeking an abortion; this requirement necessitates performing a trans-vaginal ultrasound for abortions performed in the first eight weeks after the woman’s last menstrual period.

Finally, Arizona and South Dakota adopted measures requiring counseling on the negative mental health consequences of abortion, even though this connection has been widely discredited by mental health experts; this brings to nine the number of states requiring counseling to include unsubstantiated information on the mental health impact of having an abortion. Arizona also enacted a provision that would require a woman seeking an abortion because of a fatal fetal impairment to be given information on the availability of fetal hospice services to provide assistance in carrying the pregnancy to term; Minnesota is the only other state with such a requirement.

Family Planning Funding

Despite continuing state budget constraints and the widespread attacks on family planning funding in 2011, no state has singled out family planning funding for draconian cuts so far this year.

States also seem to be backing away from efforts to de-fund family planning providers. In 2011, eight states moved to disqualify at least some family planning providers from receipt of state family planning funds; so far this year, only three states (Arizona, Kansas and North Carolina) have done so. A court has blocked enforcement of the Kansas measure.

In an unequivocal gain for reproductive health, five states have moved to expand eligibility for family planning services under Medicaid. Indiana and Montana became the newest states to adopt a broad expansion, bringing the number of states with income-based expansions to 26. Oregon and Washington, which have long-standing Medicaid family planning expansions, increased the income ceilings under their programs from 200% of the federal poverty line to 250%. And the Vermont legislature adopted a measure in March calling on the state to apply for federal approval for an expansion.

Texas stands in sharp contrast to the encouraging developments in other states. A 2011 Texas law would have prohibited Planned Parenthood affiliates from participating in the state’s long-standing Medicaid family planning expansion. In March, the Centers for Medicare and Medicaid Services informed the state that enforcing the ban would violate federal Medicaid requirements. In response, Texas announced that it would instead terminate the federal-state program and establish a state-only effort that would not reimburse Planned Parenthood affiliates for the care they provide. Litigation filed by Planned Parenthood is pending.

Sex Education

From 2007 through 2010, four states passed legislation related to sex education; in each case, the new law aimed at expanding access to comprehensive and medically accurate programs. That trend began to reverse in 2011, when Mississippi and South Dakota adopted measures changing their policies to promote abstinence-until-marriage education.

So far this year, Wisconsin and Tennessee have adopted measures promoting abstinence-until-marriage education. In April, Wisconsin rolled back its 2010 law mandating comprehensive sex education and substituted a measure requiring information about the benefits of abstinence until marriage; the 2012 law does not even identify discussion of contraception as a recommended topic. For its part, Tennessee amended its law to require that any sex education in the state “exclusively and emphatically” teach abstinence and provide instruction on the consequences of “non-marital” sex.


For more information:

Guttmacher State Center
http://www.guttmacher.org/statecenter/

Laws enacted in 2012
http://www.guttmacher.org/statecenter/updates/2012newlaws.pdf

State policies in brief
http://www.guttmacher.org/statecenter/spibs/index.html

Commentary Politics

Democrats’ Latest Platform Silent on Discriminatory Welfare System

Lauren Rankin

The current draft of the 2016 Democratic Party platform contains some of the most progressive positions that the party has taken in decades. But there is a critical issue—one that affects millions in the United States—that is missing entirely from the draft: fixing our broken and discriminatory welfare system.

While the Republican Party has adopted one of the most regressive, punitive, and bigoted platforms in recent memory, the Democratic Party seems to be moving decisively in the opposite direction. The current draft of the 2016 Democratic Party platform contains some of the most progressive positions that the party has taken in decades. It calls for a federal minimum wage of $15; a full repeal of the Hyde Amendment, which prohibits the use of federal Medicaid funding for abortion care; and a federal nondiscrimination policy to protect the rights of LGBTQ people.

All three of these are in direct response to the work of grassroots activists and coalitions that have been shifting the conversation and pushing the party to the left.

But there is a critical issue—one that affects millions in the United States—that is missing entirely from the party platform draft: fixing our broken and discriminatory welfare system.

It’s been 20 years since President Bill Clinton proudly declared that “we are ending welfare as we know it” when he signed into law a sweeping overhaul of the U.S. welfare system. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 implemented dramatic changes to welfare payments and eligibility, putting in place the Temporary Assistance for Needy Families (TANF) program. In the two decades since its enactment, TANF has not only proved to be blatantly discriminatory, but it has done lasting damage.

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In one fell swoop, TANF ended the federal guarantee of support to low-income single mothers that existed under the now-defunct Aid to Families with Dependent Children (AFDC) program. AFDC had become markedly unpopular and an easy target by the time President Clinton signed welfare reform legislation into law, with the racist, mythic trope of the “welfare queen” becoming pervasive in the years leading up to AFDC’s demise.

Ronald Reagan popularized this phrase while running for president in 1976 and it caught fire, churning up public resentment against AFDC and welfare recipients, particularly Black women, who were painted as lazy and mooching off the government. This trope underwrote much of conservative opposition to AFDC; among other things, House Republican’s 1994 “Contract with America,” co-authored by Newt Gingrich, demanded an end to AFDC and vilified teen mothers and low-income mothers with multiple children.

TANF radically restructured qualifications for welfare assistance, required that recipients sustain a job in order to receive benefits, and ultimately eliminated the role of the federal state in assisting poor citizens. The promise of AFDC and welfare assistance more broadly, including SNAP (the Supplemental Nutrition Assistance Program, commonly known as food stamps) benefits, is that the federal government has an inherent role of caring for and providing for its most vulnerable citizens. With the implementation of TANF, that promise was deliberately broken.

At the time of its passage, Republicans and many Democrats, including President Bill Clinton, touted TANF as a means of motivating those receiving assistance to lift themselves up by their proverbial bootstraps, meaning they would now have to work while receiving benefits. But the idea that those in poverty can escape poverty simply by working harder and longer evades the fact that poverty is cyclical and systemic. Yet, that is what TANF did: It put the onus for ending poverty on the individual, rather than dealing with the structural issues that perpetuate the state of being in poverty.

TANF also eliminated any federal standard of assistance, leaving it up to individual states to determine not only the amount of financial aid that they provide, but what further restrictions state lawmakers wish to place on recipients. Not only that, but the federal TANF program instituted a strict, lifetime limit of five years for families to receive aid and a two-year consecutive limit, which only allows an individual to receive two years of consecutive aid at a time. If after five total years they still require assistance to care for their family and themself, no matter their circumstances, they are simply out of luck.

That alone is an egregious violation of our inalienable constitutional rights to life, liberty, and the pursuit of happiness. Still, TANF went a step further: It also allowed states to institute more pernicious, discriminatory policies. In order to receive public assistance benefits through TANF, low-income single mothers are subjected to intense personal scrutiny, sexual and reproductive policing, and punitive retribution that does not exist for public assistance recipients in programs like Social Security and Supplemental Security Income disability programs, programs that Democrats not only continue to support, but use as a rallying cry. And yet, few if any Democrats are crying out for a more just welfare system.

There are so many aspects of TANF that should motivate progressives, but perhaps none more than the family cap and forced paternity identification policies.

Welfare benefits through the TANF program are most usually determined by individual states based on household size, and family caps allow a state to deny welfare recipients’ additional financial assistance after the birth of another child. At least 19 states currently have family cap laws on the books, which in some cases allow the state to deny additional assistance to recipients who give birth to another child. 

Ultimately, this means that if a woman on welfare becomes pregnant, she is essentially left with deciding between terminating her pregnancy or potentially losing her welfare benefits, depending on which state she lives in. This is not a free and valid choice, but is a forced state intervention into the private reproductive practices of the women on welfare that should appall and enrage progressive Democrats.

TANF’s “paternafare,” or forced paternity identification policy, is just as egregious. Single mothers receiving TANF benefits are forced to identify the father of their children so that the state may contact and demand financial payment from them. This differs from nonwelfare child support payments, in which the father provides assistance directly to the single mother of his child; this policy forces the fathers of low-income single women on welfare to give their money directly to the state rather than the mother of their child. For instance, Indiana requires TANF recipients to cooperate with their local county prosecutor’s child support program to establish paternity. Some states, like Utah, lack an exemption for survivors of domestic violence as well as children born of rape and incest, as Anna Marie Smith notes in her seminal work Welfare Reform and Sexual Regulation. This means that survivors of domestic violence may be forced to identify and maintain a relationship with their abusers, simply because they are enrolled in TANF.

The reproductive and sexual policing of women enrolled in TANF is a deeply discriminatory and unconstitutional intrusion. And what’s also disconcerting is that the program has failed those enrolled in it.

TANF was created to keep single mothers from remaining on welfare rolls for an indeterminate amount of time, but also with the express goal of ensuring that these young women end up in the labor force. It was touted by President Bill Clinton and congressional Republicans as a realistic, work-based solution that could lift single mothers up out of poverty and provide opportunities for prosperity. In reality, it’s been a failure, with anywhere from 42 to 74 percent of those who exited the program remaining poor.

As Jordan Weissmann detailed over at Slate, while the number of women on welfare decreased significantly since 1996, TANF left in its wake a new reality: “As the rolls shrank, a new generation of so-called disconnected mothers emerged: single parents who weren’t working, in school, or receiving welfare to support themselves or their children. According to [the Urban Institute’s Pamela] Loprest, the number of these women rose from 800,000 in 1996 to 1.2 million in 2008.” Weissmann also noted that researchers have found an uptick in “deep or extreme poverty” since TANF went into effect.

Instead of a system that enables low-income single mothers a chance to escape the cycle of poverty, what we have is a racist system that denies aid to those who need it most, many of whom are people of color who have been and remain systemically impoverished.

The Democratic Party platform draft has an entire plank focused on how to “Raise Incomes and Restore Economic Security for the Middle Class,” but what about those in poverty? What about the discriminatory and broken welfare system we have in place that ensures not only that low-income single mothers feel stigmatized and demoralized, but that they lack the supportive structure to even get to the middle class at all? While the Democratic Party is developing strategies and potential policies to support the middle class, it is neglecting those who are in need the most, and who are suffering the most as a result of President Bill Clinton’s signature legislation.

While the national party has not budged on welfare reform since President Bill Clinton signed the landmark legislation in 1996, there has been some state-based movement. Just this month, New Jersey lawmakers, led by Democrats, passed a repeal of the state’s family cap law, which was ultimately vetoed by Republican Gov. Chris Christie. California was more successful, though: The state recently repealed its Maximum Family Grant rule, which barred individuals on welfare from receiving additional aid when they had more children.

It’s time for the national Democratic Party to do the same. For starters, the 2016 platform should include a specific provision calling for an end to family cap laws and forced paternity identification. If the Democratic Party is going to be the party of reproductive freedom—demonstrated by its call to repeal both the federal Hyde and Helms amendments—that must include women who receive welfare assistance. But the Democrats should go even further: They must embrace and advance a comprehensive overhaul of our welfare system, reinstating the federal guarantee of financial support. The state-based patchwork welfare system must be replaced with a federal welfare assistance program, one that provides educational incentives as well as a base living wage.

Even President Bill Clinton and presumptive Democratic presidential nominee Hillary Clinton both acknowledge that the original welfare reform bill had serious issues. Today, this bill and its discriminatory legacy remain a progressive thorn in the side of the Democratic Party—but it doesn’t have to be. It’s time for the party to admit that welfare reform was a failure, and a discriminatory one at that. It’s time to move from punishment and stigma to support and dignity for low-income single mothers and for all people living in poverty. It’s time to end TANF.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (D-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

CORRECTION: A previous version of this article included a typo that misidentified Sen. Tim Kaine as a Republican. We regret this error.