Laws Affecting Reproductive Health and Rights:
2009 State Policy Review
Although state legislatures expended considerable energy in 2009 grappling with the consequences of the economic downturn, they nonetheless found time to pay significant attention to issues related to reproductive health and rights. More than 900 such measures were introduced in each state and the District of Columbia, and by year’s end, 77 new laws had been enacted in 34 states and DC. (This is more than twice the 33 new laws enacted in 20 states in 2008.) While the new abortion-related laws are overwhelmingly restrictive, states did take significant steps to promote reproductive health by mandating that sex education be comprehensive as well as medically accurate, expanding access to emergency contraception and allowing a healthcare provider to prescribe treatment for a patient’s partner for STIs.
For summaries of major state legislative actions in 2009, click here.
For a table showing legislation enacted in 2009, 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, 18 states enacted 34 laws related to abortion. Arizona adopted a massive omnibus measure that essentially revamps abortion policy in the state. The new law requires in-person counseling and a waiting period prior to an abortion, tightens restrictions on minors seeking an abortion and expands the right to refuse to participate in abortion-related services; most of the provisions are not in effect due to ongoing litigation. Passage of the measure is widely attributed to the replacement of longtime pro-choice Gov. (and now Secretary of Homeland Security) Janet Napolitano (D), who had vetoed similar bills in the past, with antichoice Gov. Jan Brewer (R).
Five states enacted laws mandating counseling and waiting periods before an abortion can be performed, with four of these states amending current counseling requirements. A total of 34 states have a law of this type (see Counseling and Waiting Periods for Abortion). Arizona was the only state to move to institute an entirely new law, adopted as part of its omnibus measure; if implemented, the law would require that counseling be conducted in person at least 24 hours prior to an abortion, thereby necessitating that a woman make two trips to the provider in order to obtain the procedure. (The in-person counseling requirement is currently blocked pending litigation.) Seven other states have similar requirements, which have been shown to pose significant access barriers for women seeking services (see The Impact of State Mandatory Counseling and Waiting Period Laws on Abortion: A Literature Review. The new law in Utah, meanwhile, requires that a woman seeking an abortion after 19 weeks’ gestation be given information on the purported ability of a fetus to feel pain, and measures adopted in Kansas and Nebraska require the provision of information on the availability of ultrasound. In a particularly far-reaching step, the North Dakota law requires that a woman seeking an abortion be told that the procedure would “terminate the life of a whole, separate and unique human being.” A similar provision was adopted by the Kansas legislature, but vetoed by Gov. Mark Parkinson (D).
Legislators in 22 states introduced measures relating to the provision of ultrasound as part of the preparation for an abortion. Three of these measures were enacted, bringing to 16 the number of states with ultrasound requirements (see Requirements for Ultrasound). Laws enacted in Kansas and Nebraska require abortion providers to offer the woman the opportunity to see the image if an ultrasound is performed. The new law in North Dakota requires providers to offer women seeking an abortion the option to have an ultrasound. Legislators in Connecticut took a somewhat different approach, enacting legislation that limits ultrasound examinations to those that have been ordered by a medical provider and conducted for a medical purpose.
Four states adopted measures addressing coerced abortions. Laws enacted in Ohio, Kansas and North Dakota require abortion providers to post signs informing women that they cannot be coerced into having the procedure and encouraging women to contact the authorities or the clinic staff if they feel pressured to have the procedure. As part of its omnibus abortion law, Arizona prohibits coercing a woman to have an abortion; unlike several other components that have been blocked pending litigation, this provision is in effect.
Although measures relating to parental involvement for minors seeking an abortion were introduced in 19 states, Arizona’s omnibus measure was the only one to be enacted in 2009. The measure tightens the state’s long-standing parental consent requirement by imposing specific standards for judges to use when determining whether to allow a minor to obtain the procedure without parental consent. It also requires that the parent’s consent be notarized before the procedure may be performed. Enforcement of the notarization requirement is blocked pending litigation, while the judicial bypass provisions are in effect. Including Arizona, 34 states require some form of parental involvement before a minor may obtain an abortion (see Parental Involvement in Minors’ Abortions).
Three states adopted measures relating to later-term abortions. The newly adopted laws in Arkansas and Arizona mirror the federal “partial-birth” abortion ban that was upheld by the U.S. Supreme Court in 2007; including these new laws, 17 states have similar bans on the procedure (see Bans on “Partial-Birth” Abortion). Utah amended its law that restricted abortions performed after 20 weeks’ gestation to apply to abortions provided after viability; including Utah, 38 states have laws related to later-term and postviability abortions (see State Policies on Later-Term Abortions). A measure that would have both banned “partial-birth” abortion and restricted all postviability procedures was vetoed in Kansas.
Nine states took actions related to alternatives-to-abortion services in 2009. Virginia authorized the sale of “Choose Life” license plates, earmarking the profits to fund crisis pregnancy centers across the state; this brings to 21 the number of states in which the plates are available (see “Choose Life” License Plates). Eight other states continued funding alternatives-to-abortion services for another year as part of their annual budget legislation. Budget legislation adopted in Iowa, Maryland and Minnesota also continued long-standing prohibitions on public funding for abortion.
Three additional laws related to abortion were also enacted. Oklahoma adopted a measure banning abortion for purposes of sex selection and instituting intrusive abortion reporting requirements that require a woman obtaining an abortion to fill out a lengthy questionnaire, the results of which could be made available on a state Web site (see Abortion Reporting Requirements). As part of its omnibus law, Arizona moved to limit the provision of surgical abortion services to physicians (see An Overview of Abortion Laws). Implementation of both measures is blocked pending litigation. Finally, Utah enacted a new law establishing the Abortion Litigation Trust Account to cover the cost of defending the state against legal challenges filed against its abortion laws.
Contraception and Prevention
Over the course of 2009, legislatures in 13 states addressed key prevention issues. Five states enacted measures specifically designed to expand or protect access to contraception. In an explicit move to protect contraceptive services from state restrictions on abortion, Colorado adopted a measure formally defining contraception as any method used to prevent a pregnancy from occurring. Utah and Virginia adopted measures to expand access to emergency contraception for women who have been sexually assaulted. The Utah measure requires that women be given information about emergency contraception, and provided with the medication on request, bringing the number of states with such a mandate to 12 (see Emergency Contraception). Virginia enacted a new law that allows nurses, working in collaboration with a physician, to provide all CDC-approved preventive medications, including emergency contraception, to women who have been sexually assaulted; no other state has adopted a similar policy.
Two states moved to expand insurance coverage for contraceptive services. Wisconsin enacted legislation requiring private insurance plans to include coverage of contraceptive services and supplies if they already cover outpatient services and prescription drugs; including Wisconsin, 27 states mandate contraceptive coverage (see Insurance Coverage of Contraceptives). For their part, Georgia and Wisconsin moved to expand access under Medicaid. Georgia authorized the state Medicaid agency to seek federal permission, known as a waiver, to expand Medicaid coverage for family planning to women with an income up to 200% of the federal poverty line; 21 states have similar programs in operation (see State Medicaid Family Planning Eligibility Expansions). Wisconsin, which already has a Medicaid family planning expansion, authorized the state agency to seek federal permission to expand its program to include men, as is done in eight other states.
Tennessee, however, adopted a measure to restrict access to contraceptive services by giving county health departments priority in the competition for state family planning funds. The measure potentially could limit funding to other agencies, such as Planned Parenthood affiliates, which would reduce access in those areas where Planned Parenthood centers are major providers. Three other states—including Michigan, which has a similar priority system—extended their restrictions on state family planning funding in the context of their annual budget legislation. The addition of Tennessee brings to six the number of states that restrict family planning funding (see State Family Planning Funding Restrictions).
By all accounts, this was an extremely difficult year for states as they tried to balance their budgets; no service or funding stream was untouchable, including those related to family planning. In 2009, legislatures in seven states specifically debated funding levels for family planning services. In three of these states (California, Iowa and Minnesota), reproductive health advocates successfully deflected proposed spending restrictions. In the other four states (Massachusetts, Michigan, Montana and Washington), family planning programs were cut substantially. It is widely expected that 2010 will present an even worse fiscal situation, as states are expecting further declines in revenue that are projected to continue until 2011 (see 2009 Trends at Midyear).
Notwithstanding fiscal pressures, six states moved to expand access to STI testing, treatment and prevention. Significantly, four states (Illinois, North Dakota, Utah and Vermont) enacted legislation authorizing expedited partner treatment, under which health professionals may treat a patient’s partner for STIs, without requiring the partner to come in for a clinical visit. In addition, Oregon adopted a measure directing the state to develop administrative rules permitting expedited partner treatment. Including these five, 14 states now permit expedited partner treatment.
In an attempt to reduce HPV infections, Oregon also enacted a new law requiring health plans to cover the HPV vaccine for girls and women aged 11–26; five other states have similar requirements. The sixth state, Arkansas, moved to make clear that minors may consent to STI testing and treatment on their own. All 50 states and the District of Columbia allow minors to consent to STI services (see Minors’ Access to STI Services).
Sex education received widespread legislative interest in 2009, with legislators in 29 states introducing measures. By the end of the year, four new laws were enacted. Hawaii and North Carolina enacted laws requiring that all sex education in the state be medically accurate and include a discussion of contraception; this brings to 17 the number of states that will require a discussion of contraception in sex education programs (see Sex and STI/HIV Education). (The situation in North Carolina was complicated, however, by the fact that the legislation unaccountably retained a long-standing requirement for abstinence-only education, even as it added the mandate for discussion of contraception.) The North Carolina law also requires that sex education include discussions of STIs (including HPV), healthy relationships, coercion and sexual abuse.
Oregon moved to codify into permanent law its existing regulations requiring that sex education be medically accurate. Additionally, the state changed its current requirement that abstinence be taught as the “safest and most responsible sexual behavior” to a requirement that abstinence simply be included in sex education programs. And finally, Washington enacted a provision that would allow the state to seek federal funds for sex education only if they would be used to fund comprehensive programs.
Pregnancy and Birth
Seventeen states took a variety of steps related to pregnancy and birth in 2009. New laws in seven states (Colorado, Connecticut, Delaware, Hawaii, Montana, Rhode Island and Texas) require providers to test a woman for HIV during her pregnancy, unless she refuses. The District of Columbia joined all 50 states in enacting a policy that allows a parent to leave an infant with a health care provider (see Infant Abandonment). Four states moved to expand the reach of their existing laws. Arizona, Tennessee and Washington expanded the facilities that may accept a relinquished infant, while a law adopted in Illinois extends the age at which an infant may be relinquished to 30 days.
Two states enacted new laws on fetal homicide. Legislation adopted in Indiana allows for a separate murder charge to be filed if a fetus dies as a result of an assault on a pregnant woman; the previous law had permitted murder charges to be filed only if the fetus was viable. A new Oregon law established that murdering or assaulting a pregnant woman when the perpetrator is aware the woman is pregnant is a crime.
Alaska and Maine enacted laws that would allow women who have had a miscarriage to obtain a “certificate of stillbirth” from the state. Although they certify that a stillbirth occurred, these certificates are not used for purposes of the states’ vital statistics systems.
Finally, North Dakota enacted a unique law affecting a minor’s ability to consent to prenatal care. Under the law, the minor may consent to care during the first trimester and for one subsequent visit; the minor’s parents must, however, consent to any care received later in a minor’s pregnancy. Including North Dakota, 37 states and the District of Columbia have related laws, although all the other states permit a minor to consent to prenatal care throughout pregnancy (see Minors’ Access to Prenatal Care).
Refusal Clauses and Duty to Provide Services
Two states moved to expand their existing refusal provisions in 2009. The Arizona measure, which is blocked pending litigation, would allow all medical providers, including pharmacists, and pharmacies to refuse to facilitate or participate in abortions, emergency contraceptive services or contraceptive services. (The previous law had been limited to hospitals and physicians, and their employees.) The new law in Louisiana permits anyone, including medical providers and pharmacists, to refuse to provide abortions and dispense drugs for medication abortion. (The state’s previous law had applied only to medical providers and hospitals.) Unlike most refusal clauses, however, the new Louisiana law institutes important patient protections. The law requires health care facilities to ensure that patients can access services in a timely manner, even if a provider refuses to perform the service; it also requires providers that refuse to provide services to notify their employer and inform patients about their refusal at the time a service is requested. Forty-six states have abortion-related refusal clauses, and 13 allow providers to refuse to participate in contraceptive services (see Refusing to Provide Health Services).
Wisconsin, meanwhile, moved to protect access to contraceptives in pharmacies by enacting legislation requiring pharmacies to dispense prescription contraceptives and emergency contraception in a timely manner. The measure permits a pharmacy to refuse to dispense the medication only if the prescription is fraudulent or contains errors or if the medication is contraindicated for the patient. The new law brings to five the number of states that protect pharmacy access (see Refusing to Provide Health Services).
Production of State Quarterly Trends is made possible in part by support from The John Merck Fund.