The Alan Guttmacher Institute

Sexual and Reproductive Health Issues in the States:

Major Trends in 2005



State legislatures paid particular attention to sexual and reproductive health policy issues in 2005. A total of 98 new laws were enacted, just over half of which are aimed at restricting access to abortion while a quarter seek to expand access to contraception. Moreover, of the 195 abortion restrictions adopted in the six legislative years beginning in 2000, fully one-quarter were enacted in 2005 alone. Similarly, of the 83 measures enacted since 2000 to promote contraceptive access, one-quarter were adopted last year.

For a state-by-state overview of legislation enacted in 2005, click here.



Trends in Abortion Legislation

Anticipating a U.S. Supreme Court less supportive of abortion rights than in the past, South Dakota last year adopted legislation that would immediately criminalize abortion in the state should Roe v. Wade be overturned. In doing so, it became the fourth state with such a provision on the books, joining Illinois, Kentucky and Louisiana.

The year also saw extensive legislating in the area of parental involvement in a minor's abortion. Arkansas and Texas replaced existing parental notification statutes with new laws mandating parental consent, while Idaho enacted a new consent provision to replace one previously enjoined. (The Idaho provision was immediately enjoined and is not in effect.) New parental notification mandates were enacted in Florida and Oklahoma , while Georgia and South Dakota modified existing provisions to make them more stringent. And Missouri took a new tack, moving to prohibit helping a minor to cross state lines in order to circumvent the state's parental notice requirement. On the other side of the coin, California voters defeated a special-election ballot initiative to require parental notification by amending the state's constitution. Currently, 34 states mandate parental involvement in a minor's decision to have an abortion, with 21 requiring consent and 13 requiring notification.

Meanwhile, antiabortion legislators continued their attempts to require that women obtaining an abortion be given specific information under the aegis of \x93informed consent,\x94 many times including information that cannot be scientifically supported. In 2005 alone, 73 such mandatory counseling measures were introduced, and laws were enacted in seven states ( Arkansas , Georgia , Indiana , Louisiana , Minnesota , Oklahoma and South Dakota ). The new laws in Arkansas, Georgia and Minnesota require that women be told that a fetus may be able to feel pain (and that they be offered the option of having anesthesia administered directly to the fetus), even though there is no scientific evidence to support this statement; these provisions are similar to an existing law in Illinois. Indiana joined Arkansas in requiring that women seeking an abortion be told of the availability of ultrasound imaging and given an opportunity to view ultrasound images before obtaining the procedure. And a new South Dakota measure requires that a woman seeking an abortion be told that "abortion will terminate the life of a whole, separate, unique, living human being" and that she has an "existing relationship" with the fetus that "enjoys protection under the United States Constitution." That law's constitutionality was challenged immediately, and the measure was enjoined by a federal district court in June.

Finally, antiabortion efforts continued last year to deprive certain types of organizations of state funds while rewarding others. Ohio , Pennsylvania and Texas moved to continue existing policies that, in the allocation of state family planning funds, disadvantage Planned Parenthood and other local agencies that provide abortion-related services, including referral. These states and five others ( Florida , Kansas , Minnesota , Missouri and North Dakota) also adopted or extended legislation authorizing funding for organizations that provide counseling on "alternatives to abortion" and services to pregnant women. Along the same lines, Ohio sanctioned the sale of "Choose Life" license plates, with the proceeds going to fund nonprofit organizations that encourage pregnant woman to choose adoption, bringing to 12 the number of states using this strategy to fund abortion alternatives.

While most states that took action on abortion issues did so to restrict access to services, Montana was alone in 2005 in moving to protect access to abortion clinics by creating a protected zone around clinic entrances. A total of 15 states and the District of Columbia now have policies aimed at protecting access to clinics.


Promoting Access to Contraception

Interest in expanding eligibility for Medicaid-funded family planning services intensified in 2005. Legislatures in Connecticut , Indiana , Massachusetts and Texas adopted measures directing the state to apply for federal permission to establish an expansion program. Under the Connecticut , Massachusetts and Texas programs, coverage would be extended to state residents with an income up to or close to 200% of the federal poverty line; the Indiana program would be more limited, only extending the period of time a woman remains eligible for family planning following a Medicaid-funded delivery. Currently, 21 states have a federally approved expansion program in place.

[Last year was the first, however, in which legislatures moved to restrict their expansion programs. The measure adopted in Connecticut would limit the state's expansion to adults. Indiana 's would implicitly exclude coverage for emergency contraception, even though emergency contraception is covered for other Medicaid recipients. The Texas legislation is quite restrictive: It contains both of the above provisions, requires that contraceptive counseling emphasize sexual abstinence for unmarried women and bars participation in the program by any family planning provider that also provides abortion-related services with other funding.]

Two states in 2005, Arkansas and West Virginia , adopted laws requiring that private insurance plans in the state include coverage of contraceptives if they cover other prescription drugs. (An additional measure passed the New Jersey legislature in 2005, but it was not signed into law until January 2006.) The West Virginia law applies to adults but not to minor dependents, the first time a state has made such a distinction in the context of a contraceptive coverage mandate. The Arkansas measure, meanwhile, excludes coverage of emergency contraception (as does an existing law in North Carolina). Both laws contain relatively narrow exemptions that permit religious employers to refuse to provide contraceptive coverage for their employees. To date (including New Jersey), 24 states now have a contraceptive coverage insurance mandate.


Massachusetts and New Hampshire (the former, by overriding the veto of Gov. Mitt Romney [R]) last year enacted laws permitting pharmacists to dispense emergency contraceptives without a prescription; a total of eight states now have such policies. Meanwhile, Massachusetts (also through the veto override) and New Jersey moved to require hospital emergency rooms to dispense emergency contraceptives to sexual assault victims on request, while Texas enacted a measure requiring that sexual assault victims be given information on STD treatment and pregnancy prevention methods, presumably included emergency contraceptives. These new laws bring to nine the number of states requiring that women who have been sexually assaulted receive at least some services related to emergency contraception.

Two states last year took steps to limit the ability of pharmacists to refuse to fill physicians' prescriptions for contraceptives, including emergency contraceptives. California Gov. Arnold Schwarzenegger (R) signed legislation requiring pharmacists to fill valid prescriptions. Under the measure, a pharmacy that permits an individual pharmacist to refuse to fill a prescription must ensure that patients can access their medication in a timely manner. Meanwhile, Illinois Gov. Rod Blagojevich (D) promulgated regulations requiring pharmacies that stock any contraceptive to dispense all methods, including emergency contraceptives.

Finally, two governors vetoed legislation designed to expand the ability of pharmacists to refuse. Arizona Gov. Janet Napolitano (D) vetoed a bill that would have expanded the state's existing refusal policy by allowing health care institutions, including pharmacies and individual medical providers, to refuse to provide services related to abortion or emergency contraception. And Gov. Jim Doyle (D) vetoed a measure that would have allowed pharmacists in Wisconsin to refuse to provide either abortion or contraceptive services.


Other Notable Trends

This past year also saw the emergence of stem cell research as a major topic of concern to the states, with six states taking supportive action and a restrictive measure being vetoed in one. Arizona and Hawaii commissioned fact-finding panels to analyze the costs and benefits to the state of establishing stem cell research programs. Connecticut , Indiana , Massachusetts and Virginia moved to actually fund stem cell research; all of these states except Indiana simultaneously acted to ban human reproductive cloning. Finally, the governor of Wisconsin vetoed legislation that would have banned all cloning, therapeutic and reproductive, in the state.

Appropriate penalties for assaults on pregnant women also remained an area of interest, with seven states enacting new or amended laws. Six\x97 Arizona , Florida , Maryland , Oklahoma , South Dakota and West Virginia \x97enacted measures creating an independent penalty for fetal homicide or assault. Maine , meanwhile, enacted two laws, one to increase penalties for assault of a pregnant woman and the other to better monitor domestic abuse involving pregnant women.

Finally, interest in using ballot initiatives to make reproductive health policy\x97as seen in both Florida's successful abortion parental notification effort in 2004 and California's unsuccessful effort last year\x97appears likely to continue. In Florida, Missouri and New Jersey , advocates are already pushing for supportive stem cell research initiatives. Signatures are being collected to put an initiative to establish personhood at conception on the ballot in Michigan . And in Oregon , advocates are working to add two initiatives to the November ballot, one that would require parental notification for abortion and the other to consider a fetus a victim in the homicide statutes.



Production of the State Update is made possible by support from The David and Lucile Packard Foundation.

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