Analysis Abortion

State-Level 2012 Retrospective: Second-Highest Number of Abortion Restrictions Ever

Rachel Benson Gold & Elizabeth Nash

Reproductive health and rights were once again the subject of extensive debate in state capitols in 2012. Over the course of the year, 42 states and the District of Columbia enacted 122 provisions related to reproductive health and rights. One-third of these new provisions, 43 in 19 states, sought to restrict access to abortion services.

This article was corrected at 9:23am ET on January 2, 2013. An earlier version incorrectly stated that exceptions to abortion for rape and incest were allowed under legislation in Louisiana and Georgia.

Reproductive health and rights were once again the subject of extensive debate in state capitols in 2012. Over the course of the year, 42 states and the District of Columbia enacted 122 provisions related to reproductive health and rights. One-third of these new provisions, 43 in 19 states, sought to restrict access to abortion services. Although this is a sharp decline from the record-breaking 92 abortion restrictions enacted in 2011, it is the second highest number of new abortion restrictions passed in a year (see here for a more detailed analysis).

Against the backdrop of a contentious presidential campaign in which abortion and even contraception were front-burner issues—to a degree unprecedented in recent memory—supporters of reproductive health and rights were able to block high-profile attacks on access to abortion in states as diverse as Alabama, Idaho, Minnesota, Pennsylvania, and Virginia. Similarly, the number of attacks on state family planning funding was down sharply, and only two states disqualified family planning providers from funding in 2012, compared with seven in 2011. That said, no laws were enacted in 2012 to facilitate or improve access to abortion, family planning or comprehensive sex education.

Abortion

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Twenty-four of the 43 new abortion restrictions were enacted in just six states. Arizona led the way, enacting seven restrictions; Kansas, Louisiana, Oklahoma, South Dakota, and Wisconsin each enacted at least three. Although some of the most high-profile debates occurred around legislation requiring that women seeking an abortion first be forced to undergo an ultrasound or imposing strict regulations on abortion providers, most of the new restrictions enacted in 2012 concerned limits on later abortion, coverage in health insurance exchanges or medication abortion.

Mandating Non-Medically Necessary Procedures Prior to Abortion: Mandatory ultrasound provisions are intended to convince a woman to continue her pregnancy to term and require a provider to perform an ultrasound even when one is not medically necessary. At the beginning of 2012, it appeared that a number of states were poised to adopt such laws. However, in February, a firestorm erupted in Virginia when it became known that the proposed mandate would, in practice, force performance of a transvaginal ultrasound. The controversy not only led to passage of a somewhat weaker requirement in Virginia but also is widely seen as having blunted efforts to mandate ultrasound in Alabama, Idaho and Pennsylvania. With the addition of Virginia, eight states now require an ultrasound prior to receiving an abortion.

Targeted Regulation of Abortion Providers (TRAP): In 2012, Arizona, Michigan and Virginia took steps to establish stringent regulations that affect only surgical and medication abortion providers, but not other providers of outpatient surgical and medical care. A law enacted in Arizona requires the state health department to develop regulations that include rules on follow-up procedures after a medication abortion, requirements for reporting abortion complications, and penalties for noncompliance. In Michigan, legislation enacted at the very end of the year directs the state health department to develop regulations that will require providers that perform at least 120 abortions per year to meet the same architectural and licensing requirements as ambulatory surgical facilities. In Virginia, Gov. Bob McDonnell approved regulations requiring all abortion clinics performing at least five procedures a month to meet the same architectural standards as hospitals; the regulations now return to the Board of Health for the final review.

Hospital Privileges: Legislation requiring abortion providers to have hospital admitting privileges was introduced in five states and enacted in three (Arizona, Mississippi and Tennessee); this provision is not mandated for other outpatient surgical and medical providers. In the most stringent of the new laws, the provision enacted in Mississippi requires abortion providers to have admitting privileges at a local hospital and to be certified in obstetrics and gynecology or eligible for certification. As soon as the restriction was signed into law, the state’s sole abortion clinic filed a legal challenge. In July, a U.S. district court judge ordered that the clinic be given time to apply for hospital privileges. By December, when all local hospitals had refused privileges to the clinic’s providers, the agency once again asked the court to enjoin enforcement so the clinic can remain open.

Later Abortion: Arizona, Georgia and Louisiana enacted measures to ban abortion prior to fetal viability in direct conflict with U.S. Supreme Court decisions. Moreover, the exceptions contained in these restrictions do not allow for an abortion when necessary to protect a woman’s life or health, as required by the Court. Of the three laws, only the Louisiana law is in full effect.  It bans abortion at 20 weeks postfertilization (22 weeks after the woman’s last menstrual period or LMP). Due to a court order, the enforcement of the Georgia ban is limited to abortions after viability. Both allow exceptions to protect the woman’s life, avert “substantial and irreversible” damage to the woman’s physical health or terminate a pregnancy that has been diagnosed as “medically futile.” Arizona’s provision prohibits abortion at 18 weeks postfertilization (20 weeks LMP); enforcement of the restriction has, so far, been blocked by the ninth U.S. Circuit of Appeals. Aside from the disputed Arizona and Georgia provisions, seven states ban abortion at 20 weeks postfertilization.

In addition, a New Hampshire provision restricting so called “partial-birth” abortion will take effect in 2013, at which time 19 states will have such bans. 

Abortion Coverage: Alabama, South Carolina, South Dakota and Wisconsin enacted provisions banning abortion coverage in the insurance exchanges being established under the Affordable Care Act. These restrictions limit a woman’s ability to obtain a health care plan that provides for her full reproductive health care needs and treats abortion as separate from other health care services; 20 states now restrict abortion coverage available through state health insurance exchanges.

Medication Abortion: In 2012, three states limited provision of medication abortion by prohibiting the use of tele-medicine, which is becoming a routine part of health care, particularly in rural areas. Michigan, Oklahoma and Wisconsin enacted provisions requiring that the physician prescribing the medication for the abortion be in the same room as the patient; seven states now prohibit the use of telemedicine.

Mandatory Counseling and Waiting Periods: South Dakota and Arizona enacted provisions requiring a woman seeking an abortion to obtain counseling that includes inaccurate or irrelevant information; 18 states now require that women seeking an abortion be given misleading information, such as asserting a link between abortion and an increased risk of breast cancer or negative mental health consequences. Meanwhile, the new ultrasound mandate in Virginia requires that women who live less than 100 miles from the clinic undergo the ultrasound 24 hours in advance of the abortion compelling women to make two trips to the clinic before receiving an abortion; 10 states now have laws that necessitate a woman to make two trips. Also in 2012, Utah increased the length of its mandated waiting period from 24 to 72 hours.

Parental Involvement: Two states adopted requirements that either mandate parental involvement or make it more cumbersome for a minor to use the judicial bypass procedure to obtain an abortion in the absence of parental involvement. Voters in Montana approved a ballot initiative requiring that the parents of a minor under 16 be notified prior to an abortion; this measure replaces an existing state law that had been blocked in court. New Hampshire enacted a provision that extends the time a court may deliberate on a judicial bypass request from 48 hours to two business days; 38 states require parental involvement in a minor’s decision to have an abortion.

Family Planning

Family Planning Funding: Family planning programs largely escaped steep budget cuts in 2012. Of the 19 states in which funding decisions were made through the legislative budget process, family planning funds were the subject of steep cuts only in Maine, where funding was slashed by 25%.

Restrictions on Family Planning Providers:  In 2011, seven states moved to disqualify certain family planning providers from eligibility for funding (Kansas, Wisconsin, North Carolina, New Hampshire, Tennessee, Indiana and Texas), but only two states added new restrictions in 2012. Arizona and North Carolina effectively barred family planning clinics not operated by health departments from being eligible for family planning grant funds; in practice, these restrictions affect only clinics operated by Planned Parenthood affiliates. That brings to nine the number of states that restrict access to family planning funds.

Insurance Coverage of Contraceptive Services: Provisions relating to contraceptive coverage mandates—and specifically which employers may refuse such coverage—were introduced in eight states and enacted in two. Arizona expanded its existing exemption to permit any employer or plan enrollee to opt out based on their religious belief, while Missouri attempted to add an exemption from the federal mandate included in the Affordable Care Act. The Missouri exemption has been blocked from enforcement by a state court. Eight states have an “expansive” exemption to their contraceptive coverage mandates.

Adolescents and Sex Education

Between 2007 and 2010, seven states enacted legislation related to sex education, and all but one expanded access to comprehensive sex education or added requirements that the sex education provided be medically accurate. Over the past two years, however, five states enacted legislation, and all but one supported abstinence-only education; 26 states now stress abstinence in sex education.

Sexually Transmitted Infections (STIs)

In 2012, Arkansas and Idaho expanded access to treatment for STIs. Both states enacted provisions allowing medical providers to treat a patient’s partner for chlamydia and gonorrhea without having seen the partner; 26 states now explicitly permit treatment of a patient’s partner.

Pregnancy and Birth

Ten states and the District of Columbia enacted new provisions related to pregnancy and birth in 2012. Among those, Colorado, Kentucky, Oklahoma and the District of Columbia addressed issues related to substance abuse and pregnancy; 37 states and the District of Columbia now have policies related to substance abuse and pregnancy. Further, Delaware and West Virginia expanded HIV testing of pregnant women.

Environmental Exposure to Reproductive Toxins

Six states and the District of Columbia enacted provisions related to reproductive health and exposure to harmful substances such as lead, mercury, Bisphenol-A (BPA) and pesticides. Provisions to protect children from lead exposure were enacted in Louisiana and Nebraska. Meanwhile, Connecticut, Illinois and Oregon took steps to keep mercury out of the environment. Also, Illinois banned the use of BPA in reusable bottles and cups for young children, and the District of Columbia required the development of regulations prohibiting the use of pesticides near most schools and child-occupied facilities.

Culture & Conversation Family

‘Abortion and Parenting Needs Can Coexist’: A Q&A With Parker Dockray

Carole Joffe

"Why should someone have to go to one place for abortion care or funding, and to another place—one that is often anti-abortion—to get diapers and parenting resources? Why can’t they find that support all in one place?"

In May 2015, the longstanding and well-regarded pregnancy support talkline Backline launched a new venture. The Oakland-based organization opened All-Options Pregnancy Resource Center, a Bloomington, Indiana, drop-in center that offers adoption information, abortion referrals, and parenting support. Its mission: to break down silos and show that it is possible to support all options and all families under one roof—even in red-state Indiana, where Republican vice presidential candidate Gov. Mike Pence signed one of the country’s most restrictive anti-abortion laws.

To be sure, All-Options is hardly the first organization to point out the overlap between women terminating pregnancies and those continuing them. For years, the reproductive justice movement has insisted that the defense of abortion must be linked to a larger human rights framework that assures that all women have the right to have children and supportive conditions in which to parent them. More than 20 years ago, Rachel Atkins, then the director of the Vermont Women’s Center, famously described for a New York Times reporter the women in the center’s waiting room: “The country really suffers from thinking that there are two different kinds of women—women who have abortions and women who have babies. They’re the same women at different times.”

While this concept of linking the needs of all pregnant women—not just those seeking an abortion—is not new, there are actually remarkably few agencies that have put this insight into practice. So, more than a year after All-Options’ opening, Rewire checked in with Backline Executive Director Parker Dockray about the All-Options philosophy, the center’s local impact, and what others might consider if they are interested in creating similar programs.

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Rewire: What led you and Shelly Dodson (All-Options’ on-site director and an Indiana native) to create this organization?

PD: In both politics and practice, abortion is so often isolated and separated from other reproductive experiences. It’s incredibly hard to find organizations that provide parenting or pregnancy loss support, for example, and are also comfortable and competent in supporting people around abortion.

On the flip side, many abortion or family planning organizations don’t provide much support for women who want to continue a pregnancy or parents who are struggling to make ends meet. And yet we know that 60 percent of women having an abortion already have at least one child; in our daily lives, these issues are fundamentally connected. So why should someone have to go to one place for abortion care or funding, and to another place—one that is often anti-abortion—to get diapers and parenting resources? Why can’t they find that support all in one place? That’s what All-Options is about.

We see the All-Options model as a game-changer not only for clients, but also for volunteers and community supporters. All-Options allows us to transcend the stale pro-choice/pro-life debate and invites people to be curious and compassionate about how abortion and parenting needs can coexist .… Our hope is that All-Options can be a catalyst for reproductive justice and help to build a movement that truly supports people in all their options and experiences.

Rewire: What has been the experience of your first year of operations?

PD: We’ve been blown away with the response from clients, volunteers, donors, and partner organizations …. In the past year, we’ve seen close to 600 people for 2,400 total visits. Most people initially come to All-Options—and keep coming back—for diapers and other parenting support. But we’ve also provided hundreds of free pregnancy tests, thousands of condoms, and more than $20,000 in abortion funding.

Our Hoosier Abortion Fund is the only community-based, statewide fund in Indiana and the first to join the National Network of Abortion Funds. So far, we’ve been able to support 60 people in accessing abortion care in Indiana or neighboring states by contributing to their medical care or transportation expenses.

Rewire: Explain some more about the centrality of diaper giveaways in your program.

PD: Diaper need is one of the most prevalent yet invisible forms of poverty. Even though we knew that in theory, seeing so many families who are struggling to provide adequate diapers for their children has been heartbreaking. Many people are surprised to learn that federal programs like [the Special Supplemental Nutrition Program for Women, Infants, and Children or WIC] and food stamps can’t be used to pay for diapers. And most places that distribute diapers, including crisis pregnancy centers (CPCs), only give out five to ten diapers per week.

All-Options follows the recommendation of the National Diaper Bank Network in giving families a full pack of diapers each week. We’ve given out more than 4,000 packs (150,000 diapers) this year—and we still have 80 families on our waiting list! Trying to address this overwhelming need in a sustainable way is one of our biggest challenges.

Rewire: What kind of reception has All-Options had in the community? Have there been negative encounters with anti-choice groups?

PD: Diapers and abortion funding are the two pillars of our work. But diapers have been a critical entry point for us. We’ve gotten support and donations from local restaurants, elected officials, and sororities at Indiana University. We’ve been covered in the local press. Even the local CPC refers people to us for diapers! So it’s been an important way to build trust and visibility in the community because we are meeting a concrete need for local families.

While All-Options hasn’t necessarily become allies with places that are actively anti-abortion, we do get lots of referrals from places I might describe as “abortion-agnostic”—food banks, domestic violence agencies, or homeless shelters that do not have a position on abortion per se, but they want their clients to get nonjudgmental support for all their options and needs.

As we gain visibility and expand to new places, we know we may see more opposition. A few of our clients have expressed disapproval about our support of abortion, but more often they are surprised and curious. It’s just so unusual to find a place that offers you free diapers, baby clothes, condoms, and abortion referrals.

Rewire: What advice would you give to others who are interested in opening such an “all-options” venture in a conservative state?

PD: We are in a planning process right now to figure out how to best replicate and expand the centers starting in 2017. We know we want to open another center or two (or three), but a big part of our plan will be providing a toolkit and other resources to help people use the all-options approach.

The best advice we have is to start where you are. Who else is already doing this work locally, and how can you work together? If you are an abortion fund or clinic, how can you also support the parenting needs of the women you serve? Is there a diaper bank in your area that you could refer to or partner with? Could you give out new baby packages for people who are continuing a pregnancy or have a WIC eligibility worker on-site once a month? If you are involved with a childbirth or parenting organization, can you build a relationship with your local abortion fund?

How can you make it known that you are a safe space to discuss all options and experiences? How can you and your organization show up in your community for diaper need and abortion coverage and a living wage?

Help people connect the dots. That’s how we start to change the conversation and create support.

This interview has been edited for length and clarity.

CORRECTION: This article has been updated to clarify the spelling of Shelly Dodson’s name.

Commentary Human Rights

When It Comes to Zika and Abortion, Disabled People Are Too Often Used as a Rhetorical Device

s.e. smith

Anti-choicers shame parents facing a prenatal diagnosis and considering abortion, even though they don't back up their advocacy up with support. The pro-choice movement, on the other hand, often finds itself caught between defending abortion as an absolute personal right and suggesting that some lived potentials are worth more than others.

There’s only one reason anyone should ever get an abortion: Because that person is pregnant and does not want to be. As soon as anyone—whether they are pro- or anti-choice—starts bringing up qualifiers, exceptions, and scary monsters under the bed, things get problematic. They establish the seeds of a good abortion/bad abortion dichotomy, in which some abortions are deemed “worthier” than others.

And with the Zika virus reaching the United States and the stakes getting more tangible for many Americans, that arbitrary designation is on a lot of minds—especially where the possibility of developmentally impaired fetuses is concerned. As a result, people with disabilities are more often being used as a rhetorical device for or against abortion rights rather than viewed as actualized human beings.

Here’s what we know about Zika and pregnancy: The virus has been linked to microcephaly, hearing loss, impaired growth, vision problems, and some anomalies of brain development when a fetus is exposed during pregnancy, according to the Centers for Disease Control and Prevention. Sometimes these anomalies are fatal, and patients miscarry their pregnancies. Sometimes they are not. Being infected with Zika is not a guarantee that a fetus will develop developmental impairments.

We need to know much, much more about Zika and pregnancy. At this stage, commonsense precautions when necessary like sleeping under a mosquito net, using insect repellant, and having protected sex to prevent Zika infection in pregnancy are reasonable, given the established link between Zika and developmental anomalies. But the panicked tenor of the conversation about Zika and pregnancy has become troubling.

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In Latin America, where Zika has rampantly spread in the last few years, extremely tough abortion restrictions often deprive patients of reproductive autonomy, to the point where many face the possibility of criminal charges for seeking abortion. Currently, requests for abortions are spiking. Some patients have turned to services like Women on Web, which provides assistance with accessing medical abortion services in nations where they are difficult or impossible to find.

For pro-choice advocates in the United States, the situation in Latin America is further evidence of the need to protect abortion access in our own country. Many have specifically using Zika to advocate against 20-week limits on abortion—which are already unconstitutional, and should be condemned as such. Less than 2 percent of abortions take place after 20 weeks, according to the Guttmacher Institute. The pro-choice community is often quick to defend these abortions, arguing that the vast majority take place in cases where the life of the patient is threatened, the fetus has anomalies incompatible with life, or the fetus has severe developmental impairments. Microcephaly, though rare, is an example of an impairment that isn’t diagnosable until late in the second trimester or early in the third, so when patients opt for termination, they run smack up against 20-week bans.

Thanks to the high profile of Zika in the news, fetal anomalies are becoming a talking point on both sides of the abortion divide: Hence the dire headlines sensationalizing the idea that politicians want to force patients to give birth to disabled children. The implication of leaning on these emotional angles, rather than ones based on the law or on human rights, is that Zika causes disabilities, and no one would want to have a disabled child. Some of this rhetoric is likely entirely subconscious, but it reflects internalized attitudes about disabled people, and it’s a dogwhistle to many in the disability community.

Anti-choicers, meanwhile, are leveraging that argument in the other direction, suggesting that patients with Zika will want to kill their precious babies because they aren’t perfect, and that therefore it’s necessary to clamp down on abortion restrictions to protect the “unborn.” Last weekend, for instance, failed presidential candidate Sen. Marco Rubio (R-FL) announced that he doesn’t support access to abortion for pregnant patients with the Zika virus who might, as a consequence, run the risk of having babies with microcephaly. Hardline anti-choicers, unsurprisingly, applauded him for taking a stand to protect life.

Both sides are using the wrong leverage in their arguments. An uptick in unmet abortion need is disturbing, yes—because it means that patients are not getting necessary health care. While it may be Zika exposing the issue of late, it’s a symptom, not the problem. Patients should be able to choose to get an abortion for whatever reason and at whatever time, and that right shouldn’t be defended with disingenuous arguments that use disability for cover. The issue with not being able to access abortions after 20 weeks, for example, isn’t that patients cannot access therapeutic abortions for fetuses with anomalies, but that patients cannot access abortions after 20 weeks.

The insistence from pro-choice advocates on justifying abortions after 20 weeks around specific, seemingly involuntary instances, suggests that so-called “late term abortions” need to be circumstantially defended, which retrenches abortion stigma. Few advocates seem to be willing to venture into the troubled waters of fighting for the right to abortions for any reason after 20 weeks. In part, that reflects an incremental approach to securing rights, but it may also betray some squeamishness. Patients don’t need to excuse their abortions, and the continual haste to do so by many pro-choice advocates makes it seem like a 20-week or later abortion is something wrong, something that might make patients feel ashamed depending on their reasons. There’s nothing shameful about needing abortion care after 20 weeks.

And, as it follows, nor is there ever a “bad” reason for termination. Conservatives are fond of using gruesome language targeted at patients who choose to abort for apparent fetal disability diagnoses in an attempt to shame them into believing that they are bad people for choosing to terminate their pregnancies. They use the specter of murdering disabled babies to advance not just social attitudes, but actual policy. Republican Gov. Mike Pence, for example, signed an Indiana law banning abortion on the basis of disability into law, though it was just blocked by a judge. Ohio considered a similar bill, while North Dakota tried to ban disability-related abortions only to be stymied in court. Other states require mandatory counseling when patients are diagnosed with fetal anomalies, with information about “perinatal hospice,” implying that patients have a moral responsibility to carry a pregnancy to term even if the fetus has impairments so significant that survival is questionable and that measures must be taken to “protect” fetuses against “hasty” abortions.

Conservative rhetoric tends to exceptionalize disability, with terms like “special needs child” and implications that disabled people are angelic, inspirational, and sometimes educational by nature of being disabled. A child with Down syndrome isn’t just a disabled child under this framework, for example, but a valuable lesson to the people around her. Terminating a pregnancy for disability is sometimes treated as even worse than terminating an apparently healthy pregnancy by those attempting to demonize abortion. This approach to abortion for disability uses disabled people as pawns to advance abortion restrictions, playing upon base emotions in the ultimate quest to make it functionally impossible to access abortion services. And conservatives can tar opponents of such laws with claims that they hate disabled people—even though many disabled people themselves oppose these patronizing policies, created to address a false epidemic of abortions for disability.

When those on either side of the abortion debate suggest that the default response to a given diagnosis is abortion, people living with that diagnosis hear that their lives are not valued. This argument implies that life with a disability is not worth living, and that it is a natural response for many to wish to terminate in cases of fetal anomalies. This rhetoric often collapses radically different diagnoses under the same roof; some impairments are lethal, others can pose significant challenges, and in other cases, people can enjoy excellent quality of life if they are provided with access to the services they need.

Many parents facing a prenatal diagnosis have never interacted with disabled people, don’t know very much about the disability in question, and are feeling overwhelmed. Anti-choicers want to force them to listen to lectures at the least and claim this is for everyone’s good, which is a gross violation of personal privacy, especially since they don’t back their advocacy up with support for disability programs that would make a comfortable, happy life with a complex impairment possible. The pro-choice movement, on the other hand, often finds itself caught between the imperative to defend abortion as an absolute personal right and suggesting that some lived potentials are worth more than others. It’s a disturbing line of argument to take, alienating people who might otherwise be very supportive of abortion rights.

It’s clearly tempting to use Zika as a political football in the abortion debate, and for conservatives, doing so is taking advantage of a well-established playbook. Pro-choicers, however, would do better to walk off the field, because defending abortion access on the sole grounds that a fetus might have a disability rings very familiar and uncomfortable alarm bells for many in the disability community.

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