Laws Affecting Reproductive Health and Rights:
State Policy Review for 2008
Social issues, including those related to reproductive health and rights, were not the top priority in 2008 for state legislators, who mostly spent the year grappling with budget crises and infrastructure issues even as they sought to shorten their sessions so they could hit the campaign trail in advance of the November elections. Nevertheless, 1,001 measures relating to reproductive health and rights were introduced in 44 states and the District of Columbia over the course of the year, and 33 new laws were enacted in 20 states. (Six state legislatures did not meet in 2008.) While none of the 17 new abortion-related laws expand access to services, a few states took significant steps to promote reproductive health by requiring hospitals to provide information on emergency contraception to women who have been sexually assaulted, laying the groundwork for expanding Medicaid family planning coverage and mandating insurance coverage of the human papillomavirus (HPV) vaccine.
Meanwhile, voters in three states cast ballots on abortion-related ballot initiatives in November, all of which failed. The initiatives defeated in Colorado and South Dakota would have banned abortion, the former by establishing personhood at conception and the latter by banning abortion except in cases of life endangerment, rape, incest or when the woman’s physical health is extremely endangered. The measure defeated in California would have required notification of a parent before a minor obtains an abortion; this was the third time in four years that a parental notification proposal was rejected by voters.
For summaries of major state legislative actions in 2008, 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.
Over the course of the year, nine states enacted new provisions, amended current law or continued funding requirements related to abortion. Among the new laws is an omnibus measure in Oklahoma—enacted over Gov. Brad Henry’s (D) veto—that includes seven provisions designed to restrict the procedure.
Four states imposed ultrasound requirements on abortion providers, bringing the total number of states with these provisions to 16. Oklahoma’s new omnibus law requires all abortion providers to have ultrasound equipment on-site and to perform an ultrasound on every woman obtaining an abortion. The provider is also required to verbally describe the image to the woman and position the monitor so she is able to see it, although the law explicitly permits the woman to avert her eyes if she desires. (This law is not in effect pending the outcome of a legal challenge.) In Ohio and South Carolina, new laws require that the woman be offered the option to view an ultrasound image if the provider performs the test in preparation for the abortion. In South Dakota, the woman must be offered the option of undergoing an ultrasound. (See Requirements for Ultrasound)
Two states enacted laws to address the issues of coerced abortion. The omnibus Oklahoma measure requires abortion providers to post notices informing women that coerced abortion is illegal and that they can contact the authorities for assistance if needed. A new Idaho law makes it a crime to coerce a woman into having an abortion by either physically harming her or threatening to do so. These new laws are the result of efforts by abortion opponents to characterizing abortion providers as often being complicit in forcing women to have abortions, despite the absence of data to substantiate their claims.
Six states addressed funding for abortion or alternatives to abortion. As part of its annual appropriations process, Maryland continued a long-standing limitation on the use of state Medicaid funds for abortions necessary in cases of life endangerment, rape, incest, fetal abnormality or when the woman’s physical or mental health is at risk. Iowa also used its budget process to continue its policy of paying for medically necessary abortions under Medicaid. Including Iowa and Maryland, 17 states use their funds to provide abortions in most cases; 32 states and the District of Columbia follow the federal standard and pay for abortions in cases of life endangerment, rape and incest. South Dakota only funds an abortion if the woman’s life is endangered. (See State Funding of Abortion Under Medicaid.) Meanwhile, as they have for several years, legislatures in Louisiana, Missouri, Oklahoma and Pennsylvania continued to appropriate funds for alternatives to abortion services.
Oklahoma’s omnibus abortion law contains two provisions related to medication abortion. The first requires providers to follow the FDA-approved protocol, which would preclude offering women newer, widely used lower-dose regimens of the medication that have been found to be as effective with fewer side effects. The new law also limits the provision of medication abortion to physicians, despite the fact that advanced practice clinicians (such as physician assistants, certified nurse midwives and advanced nurse practitioners) are permitted to provide medication abortions (as opposed to surgical abortions) in many states; research has shown that they do so with the same level of safety and efficacy as physicians.
The Oklahoma law also has two provisions not found in any other measure enacted last year. One prohibits a woman from suing a medical provider who does not give full and accurate information about her pregnancy if the misinformation results in her carrying the pregnancy to term, provided that the wrongful act or omission does not place the woman’s life or health at risk. The other greatly expands the ability of health care professionals and facilities in the state to refuse to provide or refer for abortion. The new law allows any health care facility, including clinics and pharmacies, as well as a broad range of health care professionals, including pharmacists, to refuse to participate in abortion. Under the law, employees would not have the right to refuse if the employer determines that it would constitute an undue hardship for the business. The law also requires a facility to admit a woman for an abortion if her life is endangered. Including Oklahoma, 46 states allow medical providers and 43 allow medical institutions to refuse to participate in abortion. (See Refusing to Provide Health Services)
Contraception and Prevention
Three laws enacted in 2008 were designed to improve access to contraceptives and other preventive services, while two new laws continued existing restrictions on state family planning funds.
Wisconsin became the 16th state to require hospitals to provide medically accurate and unbiased information about emergency contraception to women who have been sexually assaulted. Hospitals must also provide the medication upon request. Borrowing a compromise adopted in states such as Connecticut, Minnesota, New Jersey and New York, as a way to address concerns expressed by Catholic hospitals, the law permits hospitals to request that a woman undergo a pregnancy test prior to receiving the medication in order to ensure that she is not already pregnant. (See Emergency Contraception)
A new law in Colorado clears the way for the state to seek federal permission to expand Medicaid eligibility for family planning services. A fiscal note accompanying the bill indicates that the state Medicaid agency expects to seek to raise the ceiling to 200% of the federal poverty level. Currently, 27 states have similar programs in place. (See Medicaid Family Planning Eligibility Expansions)
Iowa enacted a provision requiring health plans issued in the state to cover the HPV vaccine if they include coverage for any immunization or vaccination. Four states (Colorado, Illinois, Nevada and New Mexico) adopted similar provisions in 2007.
Also in 2008, Colorado and Michigan re-enacted long-standing restrictions on state family planning funds. The Colorado law prohibits state family planning funds from going to organizations that provide abortion services with their own funds. Michigan barred the use of state family planning funds for abortion services, including counseling and referral. Two other states have similar restrictions. (See State Family Planning Funding Restrictions)
Pregnancy and Birth
Measures related to HIV testing of pregnant women were enacted in Maryland and Virginia. The Maryland measure requires health care providers to advise women receiving prenatal care that they can refuse an HIV test and to obtain the woman’s informed consent prior to performing the test. The new law in Virginia requires prenatal care providers to counsel women about HIV and inform them that an HIV test will be performed unless they refuse.
Three states took action on substance abuse during pregnancy. A new law in Utah requires that pregnant women be given priority access to substance abuse treatment. The Kentucky budget allocates $2 million over two years for substance abuse prevention and treatment for pregnant women. Finally, a new Virginia law requires emergency medical personnel to report to the state suspected cases of in utero exposure to controlled substances. With the addition of these laws, 37 states have provisions related to substance abuse and pregnant women. (See Substance Abuse During Pregnancy)
Infant abandonment was one of the most widely publicized issues in 2008, largely because of two laws enacted in Nebraska. The original law there allowed individuals to relinquish an infant, but failed to include an age limit. As a result, nearly three dozen children, many from out-of-state, were relinquished at Nebraska facilities. None were infants. A second law, adopted in a special legislative session called specifically for this purpose, limited the provision to infants up to 30 days of age. Also in 2008, Alaska enacted a law allowing a parent to leave an infant no more than 21 days old with police officers, medical personnel, hospital employees or emergency services personnel. Two states, meanwhile, amended their infant abandonment laws. Maryland extended the age limit at which an unharmed infant can be legally relinquished from three to 10 days. Vermont prohibited disclosure of the identity of the person relinquishing a child unless abuse is suspected. With the addition of Alaska and Nebraska, all 50 states now have laws related to infant abandonment. (See Infant Abandonment)
In New Hampshire, a new law permits the issuing of birth certificates in the case of a stillbirth. Certificates also will be issued upon request for a fetal death occurring after 24 weeks’ gestation.
Unlike in 2007, when four states took steps related to sex education, including measures in two states to expand access to comprehensive sex education, the subject did not elicit significant attention in 2008. In fact, the only enacted measure related to sex education was one in New Hampshire, which permits a student to be excused from health or sex education for religious reasons. With this new law, 36 states and the District of Columbia permit students to be excused from sex education classes. (See Sex and STI/HIV Education)
Production of State Quarterly Trends is made possible in part by support from The John Merck Fund.