Analysis Abortion

States Enact 51 Abortion Restrictions in First Half of 2015: Mid-Year Analysis

Elizabeth Nash & Rachel Benson Gold

Through the first six months of 2015, states enacted 51 new abortion restrictions; this brings the number of restrictions enacted since 2010 to 282.

Through the first six months of 2015, states enacted 51 new abortion restrictions; this brings the number of restrictions enacted since 2010 to 282. Although only about a dozen state legislations remained in session as of July 1, these states may well enact additional restrictions before the end of the year.

Following the recent pattern of increased restrictions in odd-numbered years (largely because not all legislatures are in session in even-numbered years), states have enacted more restrictions during the first half of this year than during all of last year (see chart). But nonetheless, the number of new restrictions this year is well below the 70 enacted in 2013, due in part to fewer restrictions being enacted in a handful of states—including Kansas, Oklahoma, and Arizona—that had adopted multiple restrictions between 2011 and 2014.

Abortion Restrictions

 

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Even as states continue to pass new abortion restrictions, the Supreme Court is poised to hear one, and maybe two, major abortion cases in the coming year. The Court might take a case challenging a 2013 Texas law that imposes targeted regulation of abortion providers (TRAP) requirements on abortion clinics in the state, including mandated admitting privileges for abortion providers at a local hospital. The U.S. Fifth Circuit Court of Appeals upheld a provision of the law in May. In June, the Supreme Court granted a request for an emergency stay, blocking enforcement of the provision. Abortion rights supporters are widely expected to file a full appeal to the Supreme Court in the coming months (see The State of Sexual and Reproductive Health and Rights in the State of Texas: A Cautionary Tale). In addition, the Court is weighing whether or not to hear a case in the fall centering on Mississippi’s law requiring abortion providers to have hospital admitting privileges.

Although states have adopted a wide range of restrictions so far this year, much of the attention has focused on four areas: waiting periods, abortions after the first trimester, medication abortion, and TRAP provisions. Even though most action on these issues follows recent trends, some states have charted new directions that may well serve as models for others going forward.

Waiting Periods

Three states moved this year to extend the length of their existing waiting periods, and two additional states adopted new waiting periods. Arkansas and Tennessee mandated a 48-hour wait between counseling and the abortion procedure. North Carolina and Oklahoma enacted measures requiring women to wait at least 72 hours, joining Missouri, South Dakota, and Utah, which also require women to wait at least three full days for an abortion (see Counseling and Waiting Periods for Abortion). A new Florida law, which would establish a 24-hour waiting period, has been challenged and it remains to be seen if enforcement of the law will be blocked during the court case.

Significantly, three of the five states—Arkansas, Tennessee, and Florida—to adopt waiting period requirements this year also require women to receive abortion counseling at the abortion facility, effectively necessitating two trips. Making multiple trips exacts a high toll on women, many of whom have to travel, often at considerable expense, to obtain the care they need (see A Surge of State Abortion Restrictions Puts Providers—and the Women They Serve—in the Crosshairs). Although Florida’s new “two-trip” requirement went into effect on July 1, opponents have asked that it be blocked as the legal proceedings continue; a decision on that request could happen at any time. All in all, 14 states require women to make two trips to obtain an abortion (see map).

 

Two Trips to Abortions

Abortions After the First Trimester

Since 2010, 14 states have adopted measures banning abortion at about 20 weeks post-fertilization (about 22 weeks after the woman’s last menstrual period) and 11 of these states have laws in effect. This includes a new law in West Virginia, which was enacted when the legislature overrode Democratic Gov. Earl Ray Tomblin’s veto (see State Policies on Later Abortions).

For the first time, two states, Kansas and Oklahoma, enacted measures that could ban abortion as early as 14 weeks of pregnancy. These new laws use nonmedical, vague, and inflammatory language to try to ban abortion procedures commonly used in the second trimester. The Kansas law was challenged in early June on the grounds that it violates the state’s constitution by infringing on a woman’s ability to access a safe abortion method and dictating medical practice; the law is not in effect pending resolution of the challenge. Similar measures are likely to be proposed in other states.

Medication Abortion

Including three that enacted measures this year to limit access to medication abortion, 19 states now restrict this commonly used first-trimester abortion method (see Medication Abortion).

  • Banning telemedicine. Although telemedicine is increasingly used to expand access to health care in underserved areas, states have moved aggressively in recent years to ban its use for medication abortion. This year, Arkansas and Idaho adopted new restrictions, joining 16 other states in barring this use of telemedicine. In mid-June, the Iowa State Supreme Court struck down a regulation banning the use of telemedicine for medication abortion, saying that no evidence supported the imposition of such an undue burden on women; the regulation had not been in effect pending the court decision.
  • Requiring FDA protocol. Arkansas enacted a measure requiring use of the outdated protocol, approved in 2000, that appears on the FDA label for mifepristone. The newer evidence-based regimen uses less medication, involves fewer side effects and visits to the provider, and is less expensive; this new regimen is routinely used and is widely recognized as the standard of care for performing medication abortion. Including Arkansas, four states nonetheless require the use of the outdated FDA protocol.
  • Counseling on reversing medication abortion. Arizona and Arkansas adopted a new type of medication abortion restriction: Under these laws, abortion providers are required to inform women that it is possible to stop a medication abortion by giving the woman a large dose of hormones after the mifepristone has been administered, but before the woman takes the misoprostol. However, very little evidence indicates that this works to stop the abortion procedure or that it does not entail medical risks. The Arizona law has been challenged in federal court and is not being enforced.

Targeted Regulation of Abortion Providers (TRAP)

Four states enacted measures that impose restrictions on abortion providers beyond what is necessary to ensure patients’ safety. Typically, these laws take two approaches: establishing physical facility and staffing standards, and requiring abortion providers to have a formal relationship with a hospital (see TRAP Laws Gain Political Traction While Abortion Clinics—and the Women They Serve—Pay the Price). Including the new measures enacted this year, 25 states have some form of TRAP law (see Targeted Regulation of Abortion Providers).

  • Admitting privileges. Five states require providers of either medication or surgical abortion services to have admitting privileges at a local hospital. Another ten require the provider to have either admitting privileges or another type of relationship with a hospital (such as an agreement with a physician who has privileges). This year, Arkansas adopted a new restriction that requires only medication abortion providers to have an agreement with a physician who has admitting privileges; the law does not include a parallel requirement for surgical abortion providers. Arkansas is the only state to have such a requirement. Continuing its longstanding effort to require abortion providers to have a relationship with a hospital, the state adopted a new law that requires proof of such a relationship as a condition of obtaining a license to operate in the state.
  • Physical plant standards. Legislation adopted by Tennessee in May would require surgical abortion facilities to meet all the requirements for licensure as an ambulatory surgical center; implementation of the law is blocked pending resolution of a legal challenge. Twenty-two states impose standards on abortion providers that are comparable to those for ambulatory surgical centers.
  • Disposal of fetal remains. Arkansas and Indiana now require abortion providers to either incinerate or bury fetal remains.

Editor’s note: Gwen Rathbun and Yana Vierboom also contributed to this analysis.

News Politics

Anti-Choice Democrats: ‘Open The Big Tent’ for Us

Christine Grimaldi & Ally Boguhn

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Democrats for Life of America gathered Wednesday in Philadelphia during the party’s convention to honor Louisiana Gov. John Bel Edwards (D) for his anti-choice viewpoints, and to strategize ways to incorporate their policies into the party.

The group attributed Democratic losses at the state and federal level to the party’s increasing embrace of pro-choice politics. The best way for Democrats to reclaim seats in state houses, governors’ offices, and the U.S. Congress, they charged, is to “open the big tent” to candidates who oppose legal abortion care.

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Democrats for Life of America members repeatedly attempted to distance themselves from Republicans, reiterating their support for policies such as Medicaid expansion and paid maternity leave, which they believe could convince people to carry their pregnancies to term.

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Their strategy, however, could have been lifted directly from conservatives’ anti-choice playbook.

The group relies, in part, on data from Marist, a group associated with anti-choice polling, to suggest that many in the party side with them on abortion rights. Executive Director Kristen Day could not explain to Rewire why the group supports a 20-week abortion ban, while Janet Robert, president of the group’s board of directors, trotted out scientifically false claims about fetal pain

Day told Rewire that she is working with pro-choice Democrats, including Sen. Kirsten Gillibrand and Rep. Rosa DeLauro, both from New York, on paid maternity leave. Day said she met with DeLauro the day before the group’s event.

Day identifies with Democrats despite a platform that for the first time embraces the repeal of restrictions for federal funding of abortion care. 

“Those are my people,” she said.

Day claimed to have been “kicked out of the pro-life movement” for supporting the Affordable Care Act. She said Democrats for Life of America is “not opposed to contraception,” though the group filed an amicus brief in U.S. Supreme Court cases on contraception. 

Democrats for Life of America says it has important allies in the U.S. House of Representatives and the U.S. Senate. Sens. Joe Donnelly (IN), Joe Manchin (WV), and Rep. Dan Lipinski (IL), along with former Rep. Bart Stupak (MI), serve on the group’s board of advisors, according to literature distributed at the convention.

Another alleged ally, Sen. Bob Casey (D-PA), came up during Edwards’ speech. Edwards said he had discussed the award, named for Casey’s father, former Pennsylvania Gov. Robert P. Casey, the defendant in the landmark Supreme Court decision, Planned Parenthood v. Casey, which opened up a flood of state-level abortions restrictions as long as those anti-choice policies did not represent an “undue burden.”

“Last night I happened to have the opportunity to speak to Sen. Bob Casey, and I told him … I was in Philadelphia, receiving this award today named after his father,” Edwards said.

The Louisiana governor added that though it may not seem it, there are many more anti-choice Democrats like the two of them who aren’t comfortable coming forward about their views.

“I’m telling you there are many more people out there like us than you might imagine,” Edwards said. “But sometimes it’s easier for those folks who feel like we do on these issues to remain silent because they’re not going to  be questioned, and they’re not going to be receiving any criticism.”

During his speech, Edwards touted the way he has put his views as an anti-choice Democrat into practice in his home state. “I am a proud Democrat, and I am also very proudly pro-life,” Edwards told the small gathering.

Citing his support for Medicaid expansion in Louisiana—which went into effect July 1—Edwards claimed he had run on an otherwise “progressive” platform except for when it came to abortion rights, adding that his policies demonstrate that “there is a difference between being anti-abortion and being pro-life.”

Edwards later made clear that he was disappointed with news that Emily’s List President Stephanie Schriock, whose organization works to elect pro-choice women to office, was being considered to fill the position of party chair in light of Rep. Debbie Wasserman Schultz’s resignation.

“It wouldn’t” help elect anti-choice politicians to office, said Edwards when asked about it by a reporter. “I don’t want to be overly critical, I don’t know the person, I just know that the signal that would send to the country—and to Democrats such as myself—would just be another step in the opposite direction of being a big tent party [on abortion].” 

Edwards made no secret of his anti-choice viewpoints during his run for governor in 2015. While on the campaign trail, he released a 30-second ad highlighting his wife’s decision not to terminate her pregnancy after a doctor told the couple their daughter would have spina bifida.

He received a 100 percent rating from anti-choice organization Louisiana Right to Life while running for governor, based off a scorecard asking him questions such as, “Do you support the reversal of Roe v. Wade?”

Though the Democratic Party platform and nominee have voiced the party’s support for abortion rights, Edwards has forged ahead with signing numerous pieces of anti-choice legislation into law, including a ban on the commonly used dilation and evacuation (D and E) procedure, and an extension of the state’s abortion care waiting period from 24 hours to 72 hours.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.