Laws Affecting Reproductive
Health and Rights:
Trends in the First Quarter of 2013
In 2013, as in recent years, state legislatures are devoting significant attention to issues related to reproductive health and rights. During the first three months of the year, legislators have introduced 694 provisions on these issues, and 93 have been approved by at least one legislative body.
Also in line with recent experience, abortion restrictions are at the center of state legislative activity (see 2012 State Policy Review). About half (47%) of all reproductive health measures introduced in the first quarter of the year seek to restrict access to abortion. But unlike in recent years when the thrust of legislative activity was on regulating abortion (e.g., requirements that women undergo an ultrasound, clinic regulations or insurance coverage restrictions), legislators in several states this year seem instead to be focusing on banning abortion outright, either by declaring that personhood begins at the moment of conception or by prohibiting abortion even during the first trimester of pregnancy.
At the same time, however, legislators may also be moving toward reversing a recent trend related to sex education that has led to an expansion of abstinence education over the last two years. By the end of March, two states were poised to enact legislation expanding access to comprehensive sex education for the first time since 2010.
For a full accounting of proposals and enactments on a range of reproductive health and rights issues, click here.
During the first three months of 2013, legislators in 14 states introduced provisions seeking to ban abortion prior to viability. These bans fall into three categories: measures that would prohibit all abortions, those that would ban abortions after a specified point during the first trimester of pregnancy and those that would block abortions at 20 weeks after fertilization (the equivalent of 22 weeks after the woman’s last menstrual period, the conventional method physicians use to measure pregnancy). All of these proposals are in direct violation of U.S. Supreme Court decisions.
Legislators in 10 states have introduced proposals that would ban all, or nearly all, abortions. In eight states (AL, IA, MS, ND, OK, SC, VA and WA), legislators have proposed defining “personhood” as beginning at conception; if adopted, these measures would ban most, if not all, abortions. The North Dakota legislature gave final approval to a “fetal personhood” measure in March; as a result, a proposed amendment to the state constitution will be put before voters in 2014. (This echoes recent attempts in Colorado and Mississippi to ban abortion via personhood ballot initiatives; voters rejected the measures in both states.) Meanwhile, in four states (CO, FL, IA and ND), legislators introduced measures that would ban abortion except in very limited circumstances, such as when the woman’s life is endangered or in cases of rape or incest; none of these has passed a legislative chamber.
Already in 2013, Arkansas and North Dakota have enacted legislation banning nearly all abortions beginning at some point in the first trimester of pregnancy; similar measures have been introduced in four other states (KS, KY, MS and WY). In March, the Arkansas legislature overrode Gov. Mike Beebe’s (D) veto of a provision banning abortion at 12 weeks’ gestation; the law is scheduled to go into effect later this year. (This move came even after the state enacted a separate measure to ban abortion at 20 weeks postfertilization, as discussed below.) Later in the month, North Dakota Gov. Jack Dalrymple (R) signed a measure banning abortion after a fetal heartbeat can be detected, a point that is reached at about six weeks’ gestation; the law is slated to go into effect in August. Both laws are clearly intended as direct challenges to U.S. Supreme Court decisions that states may not impose an undue burden on women seeking an abortion prior to viability, a point that is generally reached just after the end of the second trimester of pregnancy; supporters of abortion rights are widely expected to take up the gauntlet and contest the prohibitions.
Finally, legislation to ban abortions at 20 weeks postfertilization was enacted in Arkansas and is pending in nine other states (IA, IL, KY, MD, ND, OR, TX, VA and WV). In February, the Arkansas legislature overrode Gov. Beebe’s veto of a provision banning abortion at 20 weeks postfertilization. (The legislature then went on to override a second veto in March to enact a ban at 12 weeks’ gestation, as discussed above.) The law, which is now in effect, permits abortion only when the woman’s life is endangered, there is risk of possible “substantial and irreversible physical impairment of a major bodily function,” or in cases of rape or incest. A similar provision has been approved by both houses of the North Dakota legislature and is awaiting debate by a conference committee. These bans are patterned after a 2010 Nebraska law that has already served as the model for such laws in eight other states, two of which are enjoined pending legal challenges because they prohibit abortion prior to viability (see State Policies on Later Abortions).
Medication Abortion Limitations
Legislators in eight states (AL, AR, IA, IN, MO, MS, NC and TX) have introduced provisions to restrict medication abortion. If adopted, these restrictions would have a profound impact on access to medication abortion (see Medication Abortion Restrictions Burden Women and Providers—and Threaten U.S. Trend Toward Very Early Abortion). State-adopted restrictions on medication abortion generally take two approaches.
First, some restrictions prohibit use of telemedicine by requiring the physician prescribing the medication to be in the same room as the patient. During the first quarter of 2013, both houses of the Mississippi legislature approved a telemedicine ban; the measure is awaiting debate by a conference committee. As of the end of March, similar provisions have passed a legislative chamber in Alabama and Indiana and are pending in the second body. Seven states already ban telemedicine for prescribing medication abortion (see Medication Abortion). (In early April, the governor signed the Alabama measure into law and House passed the Indiana measure which is now pending in a conference committee.)
Other restrictions require medication abortion to be provided in strict accordance with long-standing FDA protocol, prohibiting use of a widely used, simpler protocol that has been demonstrated to be safe and effective. Legislation requiring the FDA protocol is pending in Iowa and Texas. Arizona and Ohio already have such a requirement in effect, and a similar law in North Dakota is enjoined because of a legal challenge.
Between 2006 and 2010, five states expanded requirements for comprehensive sex education. That positive movement came to a halt in 2011; since then, four states have enacted laws strengthening abstinence education and none has expanded comprehensive instruction (see Sex Education). Two states, however, appear to be poised to reverse that trend.
During the first three months of 2013, the Colorado legislature approved a measure to require all sex education in the state to be scientifically proven to delay sexual debut, reduce adolescents’ number of sexual partners and sexual frequency, or increase their contraceptive use. The measure, which is awaiting approval by Gov. John Hickenlooper (D), effectively would prohibit abstinence-only instruction. The Hawaii House adopted a measure that would include instruction on skills for building healthy relationships, making decisions and talking to family members about sex; it would also prohibit instruction from discriminating “on the basis of sex, race, ethnicity, national origin, disability, religion, sexual orientation or gender identity.” The measure is pending in the Senate.
Measures that improve sex education in a more limited way have also received legislative attention this year. In January, Illinois enacted a new law requiring students to receive instruction on sexual abuse. Similar measures have been approved by one legislative body in Mississippi and Pennsylvania and are pending in eight other states.
Only two legislatures appear to be moving toward restrictions on sex education in 2013. In March, the Montana House approved a measure to require parental consent before a student participates in a sex education program. In March, the North Dakota House approved a provision to bar the state university from providing comprehensive sex education to children in Fargo. (Early in April, however, the North Dakota Senate struck the provision from the bill.)