Laws Affecting Reproductive Health and Rights:
2008 Trends at Midyear (updated as of 8/22/2008)
By the end of the second quarter of 2008, just over 1,060 measures relating to reproductive health and rights had been introduced in state legislatures across the nation, and 42 such measures were enacted. In all but eight states, legislatures had adjourned for the year, and no significant special sessions had been scheduled.
For summaries of major state legislative actions so far this year, click here.
For a table showing legislation enacted in 2008, click here.
For the status of state law and policy on key reproductive health and rights issues, click here.
2008 Trends at Midyear
So far this year, there has only been moderate activity around reproductive health issues in state legislatures. Attention to these issues often subsides in election years, when legislators historically have been reluctant to take on potentially divisive social issues. Moreover, this year in particular, legislators have needed to focus on the serious budgetary issues that confront their states as a result of the economic downturn. With most legislatures already adjourned, it appears that the most significant developments of the year still lie ahead, in the form of ballot initiatives that will come before voters in three states in November.
In contrast to the usual procedure in which proposed state laws move through the legislature and, following approval, go to the governor for signature, ballot initiatives allow voters in some states to bypass the conventional legislative process entirely. This strategy, which has been used in the past by antichoice advocates, allows measures approved by the electorate to either become law or amend the state constitution without legislative approval. Advocates in two states (South Dakota and Colorado) have secured sufficient signatures to force a vote on measures that take different approaches toward the long-term goal of banning abortion. In California, meanwhile, the electorate will vote for the third time in four years on an initiative to require parental notification prior to a minor’s abortion.
The measure that will go before South Dakota voters in November would ban most abortions outright. This is the second attempt to ban abortion in South Dakota in the past two years. In 2006, voters defeated an initiative that would have prohibited abortion except in cases of life endangerment. In contrast, the measure before voters this year seeks to ban abortion except in cases of life endangerment, rape and incest and if “there is serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system.” As was the case with the 2006 initiative, the purpose of this year’s attempt is to bring a direct challenge to Roe v. Wade to the U.S. Supreme Court.
Abortion opponents in Colorado are taking a more indirect approach to the same long-term goal of banning abortion: A proposed amendment to the state constitution on the ballot this November would define a person throughout Colorado law as a “human being from the moment of fertilization.”
Moreover, the reach of the Colorado initiative potentially goes much further. By declaring that legal personhood begins at fertilization, the initiative could pave the way for banning common methods of birth control, including oral contraceptives, which may sometimes act post-fertilization (although their primary mode of action is to block ovulation).
The third initiative related to reproductive health issues will be yet another attempt to secure approval of a measure to require parental notification when a teen in California seeks an abortion. Similar proposals were presented and soundly defeated in 2005 and 2006. (A state law requiring parental consent was overturned by the California Supreme Court in 1997.) If the current initiative is passed, a minor would be unable to obtain an abortion for 48 hours after a physician has informed her parents in writing of his or her intent to perform the procedure. Passage of the California measure would bring to 36 the number of states requiring parental involvement for minors seeking an abortion (see Parental Involvement in Minors' Abortions).
Production of State Quarterly Trends is made possible in part by support from The John Merck Fund.