Reproductive Health and Rights:
Major Trends in 2007
Over the course of 2007, legislators in the 50 states considered more than 1,000 legislative proposals concerning reproductive health and rights. These proposals resulted in the enactment of 88 new laws in 38 states. No one particular issue dominated the legislative deliberations in 2007. While legislative activity about abortion was split between provisions to restrict or protect abortion rights, most of the activity around contraception and prevention was aimed at expanding access to reproductive health services.
For summaries of major state legislative actions in 2007, click here.
For a table showing legislation enacted in 2007, click here.
For the status of state law and policy on key reproductive health and rights issues, click here.
Three states took steps in 2007 to protect women’s access to abortion. Massachusetts increased the required “buffer zone” shielding abortion clinic staff and patients from protestors. The new law prohibits protestors from coming within 35 feet of a clinic’s entrance or its surrounding walkways. The measure replaces an earlier provision that shielded patients within an 18-foot zone around a clinic. Colorado and Montana have similar protections (see Protecting Access to Clinics).
Two states, meanwhile, expanded insurance coverage for abortion. A new law in New Jersey includes coverage of abortion in the insurance plan offered to state employees, while a new Michigan statute allows coverage of the procedure in the plan offered to employees at community colleges.
However, two other states adopted restrictions on insurance coverage of abortion. Oklahoma adopted a provision that restricts abortion coverage—except in cases of life endangerment, rape or incest—under any insurance plan issued in the state unless a special rider is purchased at an additional cost; four other states have similar restrictions (see Restricting Insurance Coverage of Abortion). South Carolina, meanwhile, voted to continue existing restrictions in plans for state employees, which permit coverage of abortion only in cases of rape, incest or life endangerment; 11 states have similar restrictions.
Over the course of the year, states moved to restrict abortion rights in several ways. Most dramatically, legislators in 12 states introduced measures to ban abortion. Despite the significant media attention given to these high profile bills, only two states, Mississippi and North Dakota, actually enacted new laws by year’s end. These so-called trigger laws would go into effect in the event Roe v. Wade is overturned. This brings to four the number of states with such provisions (see Abortion Policy in the Absence of Roe).
While the Supreme Court's April decision in Gonzales v. Carhart, which upheld a federal ban on “partial-birth” abortion, may lead to an increase in similar state legislation in the future, Louisiana was the only state to adopt such a provision in 2007. This new law is nearly identical to the federal ban in scope, although the penalties under the state law are more severe than those included in the federal ban. Louisiana is one of 14 states with a “partial-birth” abortion ban in effect (see Bans on “Partial-Birth” Abortion).
Laws addressing parental involvement before a minor obtains an abortion were considered by legislatures in 24 states. Idaho adopted a new law requiring parental consent before a minor obtains an abortion in an effort to replace a law that had never gone into effect because of a lawsuit. It is the 35th state to require parental involvement in a minor’s decision to have an abortion (see Parental Involvement in Minors’ Abortions). In response to years of litigation over its parental notification statute, New Hampshire repealed the provision in its entirety rather than continue the prolonged court battle.
Legislators in Mississippi and Oklahoma moved to tighten their states’ existing parental involvement requirements. Oklahoma joined Utah in requiring not only parental notification when a minor seeks an abortion, but also parental consent to the procedure.
Moreover, both Oklahoma and Mississippi enacted provisions requiring a judge to find clear and convincing evidence either that the minor is mature or that an abortion waiver is in her best interest before allowing the procedure to take place without the involvement of her parents.
Several states adopted provisions related to the counseling or information a woman must receive prior to having an abortion. Arkansas voted to require a provider to ensure that the woman’s consent to the abortion is voluntary and not the result of coercion; it is the eighth state to adopt such a requirement (see Mandatory Counseling and Waiting Periods for Abortion). A law adopted in Louisiana requires that every woman seeking an abortion be informed of the purported ability of a fetus to feel pain and of the availability of anesthesia for the fetus; eight states now have provisions on fetal pain.
Laws adopted in four states include provisions related to ultrasound, for a total of 11 states with such provisions (see Requirements for Ultrasound). A new law in Mississippi requires every woman seeking an abortion to have an ultrasound and be given the opportunity to view the image. New measures in Georgia and Idaho do not require all women to undergo an ultrasound, but instead mandate that women be given the opportunity to see the image if the procedure is performed as part of the preparation for an abortion. Finally, a new Louisiana law requires that women be told of the availability of ultrasound services as part of abortion counseling; the state already requires abortion providers to perform an ultrasound on each woman seeking an abortion.
Mississippi and Missouri adopted new regulations affecting abortion clinics in 2007. As part of its new law requiring that women undergo an ultrasound prior to having an abortion, Mississippi moved to require that abortion providers have the expensive ultrasound equipment on-site. Under the measure adopted in Missouri, any provider that performs more than five first-trimester abortions a year—or any second- or third-trimester abortions—would be classified as an ambulatory surgical center, and therefore subject to additional regulation by the state. Abortion providers in the state immediately filed a lawsuit, arguing that the extensive building renovations were both unnecessary and prohibitively expensive. In September, a federal judge ordered both sides to attempt to find a mutually acceptable compromise; none has materialized so far, and the law has not been implemented.
Several states continued long-standing restrictions on the use of state funds to pay for abortions (see State Funding of Abortion Under Medicaid). Under these provisions, state dollars may be used in North Carolina to pay for abortions for low-income residents only in cases of rape, incest and life endangerment; Iowa pays for abortions under those circumstances and when there is a fetal abnormality. South Carolina continued its policy to prohibit the use of public funds for medication abortion. For its part, Maryland extended its long-standing policy to fund all or most medically necessary abortions for low-income women in the state. Oklahoma adopted a new provision prohibiting state facilities, equipment or employees from being used for abortion services, except when the abortion is necessary to save the woman’s life or in cases of rape or incest.
Two states adopted measures defining the medical emergency exception that allows women to bypass state requirements, such as mandates to obtain parental notification or state-directed counseling. Missouri extended the reach of its existing exception, so that it now applies to the state’s entire abortion code; this effectively allows women to bypass any state requirement in the event of a medical emergency. In contrast, Oklahoma eliminated mental health from its provision, allowing exceptions only if the woman’s life or physical health is imperiled.
Measures in eight states continued funding to services designed to promote “alternatives to abortion.” These funds are often distributed to groups such as “crisis pregnancy centers,” which seek to persuade women to consider adoption instead of abortion, and which have been shown to provide misleading information to women. Five of these states (Arizona, Missouri, Ohio, Oklahoma and Pennsylvania) specifically prohibit funds from being disbursed to organizations that provide abortion services, including referral and counseling. The remaining three states (Louisiana, North Dakota and Texas) specify only that their funds are to be distributed to organizations that promote childbirth and provide pregnancy support services.
Using an administrative rather than a legislative process, Pennsylvania moved to begin production of “Choose Life” license plates in 2007. As in the 16 other states with the specialty plates, proceeds from the plates’ distribution fund adoption and alternatives to abortion services (see ‘Choose Life’ License Plates). The issue remains unsettled in Illinois, in which a 2007 judicial decision that would have cleared the way for the license plates is being appealed.
Contraception and Prevention
Several states enacted laws on a variety of fronts to expand access to contraceptive and preventive reproductive health services.
Arkansas, Colorado, Connecticut, Minnesota and Oregon enacted new laws requiring hospitals to provide information on emergency contraception to women who have been sexually assaulted; there are now 14 states that require hospitals to provide emergency contraception information (see Emergency Contraception). The new laws in Connecticut, Minnesota and Oregon go a significant step further, and require the hospital to provide the medication, if requested by the woman. With these new laws, 10 states require hospitals to provide emergency contraception upon request.
Several states moved to expand eligibility for Medicaid-covered family planning services in 2007. In Virginia and Wisconsin, the legislature directed the state to further expand existing programs. In the case of Virginia, which already had expanded coverage for family planning services postpartum, the state was directed to seek federal approval to extend eligibility to women with incomes up to 200% of the federal poverty level. In Wisconsin, the legislature directed the state to seek to extend coverage to women with an income up to that same level, an increase from the state’s current ceiling of 185% of poverty. The federal Centers for Medicare and Medicaid Services (CMS) approved both of these proposals, along with a third proposal submitted by Pennsylvania to extend coverage to women with an income up to 185% of poverty, during the course of the year. This brings to 20 the number of states with broad, income-based Medicaid family planning expansions and to 26 the total number of states with any type of expansion (see State Medicaid Family Planning Eligibility Expansions). Also last year, the New Hampshire legislature directed the state to apply for an expansion while the Missouri legislature directed the state to broaden its existing expansion; neither of these proposals was submitted to CMS by year’s end.
While much attention was focused on public insurance coverage under Medicaid, Oregon enacted a provision requiring that private insurance plans cover contraceptive services. Counting this new law, 27 states have a contraceptive coverage mandate (see Insurance Coverage of Contraceptives).
A newly enacted law in New Jersey requires pharmacies to fill all valid prescriptions for the drugs it stocks; the measure is similar to one that was adopted in California in 2005 (see Refusing to Provide Health Services). Washington issued a regulation designed to have the same impact, but its implementation has been delayed pending resolution of a legal challenge filed by a pharmacy and its pharmacists on whether they may refuse based on religious belief.
The newly approved HPV vaccine was expected to be a hot topic in state legislatures in 2007, and proposals to mandate vaccination for school entry were introduced in 25 states and the District of Columbia early in the year (see Challenges and Opportunities for U.S. Family Planning Clinics in Providing the HPV Vaccine). However, much of the momentum for school mandates dissipated when groups as disparate as religious conservatives, communities of color, opponents of vaccines and other public health advocates campaigned against a mandate. By year’s end, only Virginia had adopted a mandate, while Arizona and Texas passed measures expressly prohibiting a mandate. (The Texas law was adopted in response to an Executive Order issued by the governor to mandate the vaccine.) A mandate adopted by the New Mexico legislature was vetoed by Gov. Bill Richardson (D).
Despite the controversy over school mandates, four states (Colorado, Illinois, Nevada and New Mexico) moved to require coverage of the HPV vaccine in private health insurance plans, although the mandates apply to different age-groups in different states. In Colorado and Nevada, insured girls and women aged 9–26 are covered; in Illinois the mandate covers girls younger than 18 and in New Mexico it applies to girls aged 9–14. California Gov. Arnold Schwarzenegger (R) vetoed a measure that would have required health plans that cover treatment for cervical cancer to also provide coverage for the HPV vaccine.
Restrictions on state family planning funds were re-enacted in Colorado and Michigan and expanded in Texas. Colorado legislators overrode Gov. Bill Ritter’s (D) veto and continued the prohibition on state funds going to organizations that provide abortion services with their own funds, while the budget adopted in Michigan continues the prohibition on the use of state family planning funds for abortion counseling and referral. Texas, meanwhile, added a requirement that agencies receiving state family planning funds be completely separate from abortion providers; two other states have a similar provision (see State Family Planning Funding Restrictions).
In a significant development, three states took steps in 2007 to improve access to comprehensive sex education. Laws adopted in Colorado and Washington require that any sex education offered in public schools include instruction on contraception as well as abstinence. At present, 14 states require that contraception be included in the sex education provided to public school students (see Sex and STI/HIV Education). Moreover, the new laws in Colorado and Washington, as well as a similar measure adopted in Iowa, require that all sex education instruction be medically accurate.
Missouri, however, moved in the opposite direction. Since 1999, the state had required information on abstinence and contraception in sex education programs; it had also required that any instruction provided be medically accurate. A measure adopted in 2007, however, abolished both requirements by allowing abstinence-only education that meets the federal eight-point definition, which asserts, among other things, that “sexual activity outside the context of marriage is likely to have harmful psychological and physical side effects.”
Pregnancy and Birth
Laws enacted in California, Georgia, Illinois, Iowa, Nevada, New Jersey, New Mexico, Rhode Island and Tennessee establish new provisions on HIV testing of pregnant women. In all these states except Louisiana, Nevada and New Jersey, a pregnant woman is required to be informed about the HIV test and then tested for HIV unless she declines. In addition to similar information and testing requirements for a pregnant woman, the measures adopted in Louisiana, Nevada and New Jersey also mandate that a provider perform an HIV test on an infant born to a mother who has not been tested, in Nevada and New Jersey may parent refuse the test on the basis of religious beliefs. A law adopted in Maryland requires a physician to report the birth of any infant whose mother is HIV positive within 48 hours.
Four states adopted provisions concerning substance abuse and pregnant women. Maryland and Louisiana added provisions that consider prenatal substance abuse evidence of child neglect. Provisions adopted in Minnesota and Missouri require reporting of newborns affected by controlled substances.
New laws in Arkansas, California, Montana, Rhode Island and South Dakota allow a woman who loses a fetus after 20 weeks’ gestation to seek a certificate of birth resulting in a stillbirth. The certificates are not mandatory and do not affect vital statistics reporting systems.
Hawaii became the 48th state to allow the relinquishment of a newborn. A person there may now leave an unharmed infant no more than 72 hours old at a hospital, fire station or police station without risk of prosecution for child abandonment. In California, a measure that would have extended the time frame for relinquishing an infant from 72 hours to seven days was vetoed by Gov. Arnold Schwarzenegger (R).
Production of State Quarterly Trends is made possible in part by support from The John Merck Fund.