Analysis Abortion

State Policy Trends: More Supportive Legislation, Even as Attacks on Abortion Rights Continue

Elizabeth Nash & Rachel Benson Gold

Some 64 provisions have been introduced so far this year to expand or protect access to abortion, more than had been introduced in any year in the last quarter-century.

The 2014 legislative session got off to a fast start, with legislators introducing a combined 733 provisions related to sexual and reproductive health and rights in nearly all the states that have legislative sessions this year (legislatures in Montana, Nevada, North Dakota, and Texas will not meet in 2014). See here for the full analysis of the first quarter of 2014.

Significantly, legislators quickly showed a clear interest in protecting or expanding access to sexual and reproductive health care. Some 64 provisions have been introduced so far this year to expand or protect access to abortion, more than had been introduced in any year in the last quarter-century. And only three months into the year, two new provisions protecting abortion rights have been enacted, and three others have passed one legislative chamber. Similarly, seven measures designed to expand access to other sexual and reproductive health services have passed at least one legislative body in six states and the District of Columbia.

As in recent years, however, state legislatures continued to take aim at abortion rights. Legislators in 38 states introduced 303 provisions seeking to limit women’s access to care. By March 31, three new abortion restrictions had been enacted, and 36 had passed one legislative chamber.

Expanding Access to Sexual and Reproductive Health Care

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In 2013, California and Colorado enacted the first state laws since 2006 to protect and expand access to abortion services. The California law allows appropriately trained nurse-practitioners, physician assistants, and certified nurse midwives to provide first-trimester abortion services, while Colorado repealed its pre-Roe abortion ban. Building on that momentum, governors in two other states have already signed measures protecting abortion rights into law this year. Vermont repealed its pre-Roe abortion ban and Utah waived its counseling and ultrasound requirements when an abortion is necessary to protect the woman’s life or health or in cases of severe fetal impairment.

In addition, proactive measures have passed at least one legislative chamber in three additional states, including bills that would establish a 25-foot buffer zone around abortion clinics (NH); permit abortions until 24 weeks of pregnancy when the woman’s life or health is at risk (NY); and require insurance plans to cover abortion services if they cover maternity care (WA). Legislators in other states have also taken steps to expand access to sexually transmitted infection (STI) and family planning services (see the full analysis for details).

Restricting Access to Sexual and Reproductive Health Care

In sharp contrast, but mirroring the trend in recent years, legislators moved quickly to reduce abortion access as this year’s sessions opened: three laws were enacted in the first three months. Indiana accounted for two of these measures, banning nearly all abortion coverage in private insurance plans and also requiring inspections of abortion clinics at least once a year; South Dakota banned abortion for the purpose of sex-selection (see the full analysis for details).

Legislators in 16 states have introduced provisions that would conflict with U.S. Supreme Court holdings by banning at least some abortions prior to viability. Five of these measures have passed at least one legislative chamber. One of these five, a measure in West Virginia that would have banned abortion at 20 weeks post-fertilization (the equivalent of 22 weeks past the woman’s last menstrual period) was approved by the legislature only to be vetoed by Gov. Earl Ray Tomblin (D). This runs counter to the recent trend of signing so-called 20-week bans into law, which has occurred in 12 states over the last four years.

Several states have continued their attempts to enact burdensome and unnecessary requirements aimed at shutting down abortion providers (known as TRAP [targeted regulation of abortion providers] laws), which would require an abortion provider to have admitting privileges at a hospital within 30 miles and direct the state to develop standards for abortion clinics (OK).

In addition, five measures to expand existing counseling and waiting period requirements have passed at least one legislative chamber so far this year. These measures would lengthen existing waiting periods (AL and MO); mandate that pre-abortion counseling take place in person at least 24 hours in advance of the procedure, meaning that a woman would have to make two separate trips to obtain an abortion (KY); and require counseling about perinatal hospice care for women who are seeking an abortion because of a diagnosed fetal impairment (AL and OK). In addition, legislative chambers in three states that already require parental consent approved measures designed to make it even more difficult for a minor to obtain an abortion (AL, AZ, and MO).

Legislators have sought to limit access to abortion services in other ways by attempting to reduce access to medication abortion (OK and IA); banning abortion coverage in plans sold on the insurance exchange (GA); and requiring an ultrasound before a woman may obtain an abortion (KY).

Finally, legislators in several states have moved to impede access to other sexual and reproductive health services; some examples include measures that would: disqualify independent family planning clinics, such as those operated by Planned Parenthood, from receiving any family planning funds that flow through the state, including federal Medicaid reimbursement (MO); require minors younger than 17 to have a prescription to obtain emergency contraception (OK); and expand the ability of health-care providers to refuse to provide services (AL and MO).

See the full analysis for additional details.

Gwendolyn Rathbun and Yana Vierboom also contributed to this analysis.

For more information:

Guttmacher State Center
State Policies in Brief
State Policy Developments in 2013
Analysis: A Surge of State Abortion Restrictions Puts Providers—and the Women They Serve—in the Crosshairs

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.

News Abortion

Anti-Choice Group Wants National Abortion Data Reporting Law

Teddy Wilson

Anti-choice activists claim that despite the evidence, the number of complications from abortion is higher than is being reported. States that track abortion care data have shown the procedure to be exceedingly safe.

A leading anti-choice organization is calling for a national database of abortion statistics and increased reporting requirements for states—proposals seen as part of a strategy to justify laws restricting access to abortion care.

The U.S. Supreme Court in June struck down provisions of Texas’ omnibus anti-choice law known as HB 2. The ruling relied heavily on research that showed abortion care was a safe and well regulated procedure. Anti-choice activists have long disputed those claims.

Clarke Forsythe, acting president of Americans United for Life (AUL), told Politico that there is not enough data on abortion. “The abortion advocates like to talk in vague terms about abortion but we need specifics,” Forsythe said. “We don’t have a national abortion data collection and reporting law.”

The Centers for Disease Control and Prevention (CDC) has collected “abortion surveillance” data since 1969. The CDC published the most recent report on abortion statistics in 2012.

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Abortion surveillance reports are created by compiling data from health agencies, provided voluntarily to the CDC, in all 50 states as well as the District of Columbia and New York City. The data includes deaths from abortion related complications, but does not include the number of complications that don’t result in deaths.

Reporting requirements for abortion statistics vary from state to state, with 46 states requiring that abortion providers submit regular reports, according to the Guttmacher Institute. Most states report the number of abortion procedures performed as well as the type of procedure, the gestation of the pregnancy, and demographic data of the patient.

There are 27 states that require providers to report the number of complications from abortion procedures.

The self-described “legal architect” of the anti-choice movement, AUL has been heavily involved in lobbying for state and federal laws that restrict access to abortion. The organization creates copycat legislation and distributes anti-choice proposals to state lawmakers, who then push the measures through legislatures.

Forsythe took a victory lap Monday for the organization’s role in promoting bills from the AUL’s “playbook of pro-life legislation” that were introduced this year in state legislatures. “AUL continued to assist states considering health and safety standards to protect women in abortion clinics,” Forsythe said in a statement.

Dozens of bills to increase reporting requirements have been introduced in state legislatures over the past several years. These proposals include several types of reporting requirements for abortion providers, and many of the provisions are similar to those found in AUL model legislation.

Arizona legislators in 2010 passed SB 1304, which required abortion providers to submit annual reports to the state and required the state Department of Health Services (DHS) to publish an annual report.

The Republican-backed legislation is similar to copycat legislation drafted that same year by AUL.

Since the law’s passage there have been very few complications resulting from abortion procedures reported in the state: from 2011-2014, less than 1 percent of abortions procedures in the state resulted in complications.

Arizona reported that 137 patients experienced complications out of 12,747 abortion procedures in 2014; 102 patients experienced complications out of 13,254 abortion procedures in 2013; 76 patients had complications out of 13,129 abortion procedures in 2012; 60 patients experienced complications out of 14,401 abortion procedures in 2011.

Dr. Daniel Grossman, a physician at the University of California, San Francisco who studied the impact of HB 2 for the Texas Policy Evaluation Project (TxPEP), told Politico that abortion has been shown to be exceptionally safe medical procedure.

“There’s already a lot of data that have been published documenting how safe abortion is in the U.S.,” Grossman said.“The abortion complication rate is exceedingly low.”

Anti-choice activists claim that despite the evidence, the number of complications from abortion is higher than is being reported. Joe Pojman, the executive director of the Texas Alliance for Life, told Politico that “better data” is needed.

Texas has required reporting of the number of complications from abortion procedures since 2013, and the data has shown that abortion complications are exceedingly rare. There were 447 complications out of 63,849 procedures in 2013 and 777 complications out of 54,902 procedures in 2014.

Pojman said that the Texas data “defies common sense” and that the complications are “are much smaller than what one would expect.”

The Texas abortion statistics reveal that it is safer to have an abortion than to carry a pregnancy to term in the state. Between 2008 and 2013, the most recent years for which data is available, there were 691 maternal deaths in Texas, compared to one death due to abortion complications between 2008 and 2014.

“There’s no sign that there’s a hidden safety problem happening in Texas,” Grossman said.

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