Laws Affecting Reproductive
Health and Rights:
Trends in the First Quarter of 2014
Elizabeth Nash, Rachel Benson Gold, Gwendolyn Rathbun and Yana Vierboom
The 2014 legislative session got off to a fast start, with legislators introducing 733 provisions related to sexual and reproductive health and rights; measures were introduced in nearly all of the 46 states with legislative sessions this year. (Legislatures in Montana, Nevada, North Dakota and Texas will not meet in 2014.)
Significantly, legislators quickly showed a clear interest in protecting or expanding access to sexual and reproductive health care. Some 64 provisions have been introduced so far this year to expand or protect access to abortion, more than had been introduced in any year in the last quarter century. And only three months into the year, two new laws protecting abortion rights have been enacted, and three others have passed one legislative chamber. Similarly, seven measures designed to expand access to other sexual and reproductive health services have passed at least one legislative body in six states and the District of Columbia.
As in recent years, however, state legislatures continued to take aim at abortion rights. Legislators in 38 states introduced 303 provisions seeking to limit women’s access to care. By March 31, three new abortion restrictions had been enacted, and 36 had passed one legislative chamber.
Expanding Access to Sexual and Reproductive Health Care
In 2013, California and Colorado enacted the first state laws since 2006 to protect and expand access to abortion services. The California law allows appropriately trained nurse-practitioners, physician assistants and certified nurse midwives to provide first-trimester abortion services, while Colorado repealed its pre-Roe abortion ban. Building on that momentum, governors in two other states have signed measures protecting abortion rights into law this year. A new law signed by Vermont Gov. Peter Shumlin (D) repeals the state’s pre-Roe abortion ban and a measure signed by Utah Gov. Gary Herbert (R) would waive the state’s counseling and ultrasound requirements when an abortion is necessary to protect the woman’s life or health or in cases of severe fetal impairment.
In addition, proactive measures have passed at least one legislative chamber in three additional states. These bills would:
- establish a 25-foot buffer zone around abortion clinics in New Hampshire;
- permit abortions until 24 weeks of pregnancy and when the woman’s life or health is at risk in New York; and
- require insurance plans in Washington to cover abortion services if they cover maternity care.
Legislators have also taken steps to expand access to STI and family planning services:
- Measures to permit expedited partner treatment for STIs are awaiting final action in the District of Columbia and have passed one chamber in Kentucky and New York. In West Virginia, a bill to permit this type of treatment passed both chambers, but was ultimately vetoed by Gov. Earl Ray Tomblin (D). Currently, 28 states permit expedited partner treatment (see Partner Treatment for STIs).
- A measure that would give health department nurses authority to prescribe drugs for purposes of STI treatment or contraception has passed one legislative chamber in Washington.
Restricting Access to Sexual and Reproductive Health Care
Access to Abortion
In sharp contrast, but mirroring the trend in recent years, legislators also moved quickly to reduce abortion access as this year’s sessions opened with three laws being enacted in the first three months (see A Surge of State Abortion Restrictions Puts Providers—and the women they serve—in the Crosshairs). Indiana accounted for two of these measures, banning nearly all abortion coverage in private insurance plans and also requiring inspections of abortion clinics at least once a year; South Dakota banned abortion for the purpose of sex-selection (see the full analysis for details).
Legislators in 16 states have introduced provisions that would conflict with U.S. Supreme Court holdings by banning at least some abortions prior to viability. Five of these measures have passed at least one legislative chamber. One of these five, a measure in West Virginia that would have banned abortion at 20 weeks postfertilization (the equivalent of 22 weeks past the woman’s last menstrual period), was approved by the legislature only to be vetoed by Gov. Earl Ray Tomblin (D); this runs counter to the trend of signing so-called 20-week bans into law, which has occurred in 12 states over the last four years (see State Policies on Later Abortion). Of the other four measures, three are still pending, and one has been signed into law:
- The most extreme is a measure in Alabama that would ban abortion when a fetal heartbeat can be detected, something that usually occurs at about six weeks after the woman’s last menstrual period;
- The House in South Carolina passed a measure to ban abortion at 20 weeks postfertilization.
- The Mississippi legislature passed a bill that would ban abortion at 20 weeks after the woman’s last menstrual period, the equivalent of 18 weeks postfertilization. Gov. Phil Bryant (R) has said that he intends to sign the legislation.
- South Dakota Gov. Dennis Daugaard (R) signed a new law banning abortion for purposes of sex selection; this brings to seven the number of states with this type of ban (see A Problem-and-Solution Mismatch: Son Preference and Sex-Selective Abortion Bans).
Several states have continued their attempts to enact burdensome and unnecessary requirements aimed at shutting down abortion providers (see TRAP Laws Gain Political Traction While Abortion Clinics—and the Women They Serve—Pay the Price). The Oklahoma Senate passed a measure that would require an abortion provider to have admitting privileges at a hospital within 30 miles and direct the state to develop standards for abortion clinics; North Dakota, Tennessee, Texas and Utah currently require abortion providers to have admitting privileges (see Targeted Regulation of Abortion Providers). In Indiana, Gov. Mike Pence (R) signed a measure that directs the state to inspect abortion clinics at least once a year. The House in Arizona passed a similar measure related to unannounced inspections, which is now awaiting action by the Senate.
Five measures to expand existing counseling and waiting period requirements have passed at least one legislative chamber so far this year:
- Legislation passed by the House in Alabama and Missouri would lengthen the states’ existing waiting period for women seeking abortions; in Alabama, the wait would be extended from 24 to 48 hours, while in Missouri, the wait would increase from 24 to 72 hours, making it the third state to require a 72-hour wait (Counseling and Waiting Periods for Abortion).
- The Kentucky Senate passed a measure that would require mandated pre-abortion counseling to take place in person at least 24 hours in advance of the procedure, meaning that a woman would have to make two trips to obtain an abortion; 10 states already have this type of counseling requirement.
- One chamber of the legislature in Alabama and Oklahoma passed legislation that would require counseling about perinatal hospice care for women who are seeking an abortion because of a diagnosed fetal impairment.
Legislative chambers in three states that already require parental consent approved measures designed to make it even more difficult for a minor to obtain an abortion. The Alabama House passed a measure that would require a parent seeking to consent to an abortion for his or her daughter to not only provide a certified birth certificate but also have the consent form notarized. The Arizona House passed legislation that would criminalize assisting a minor in accessing an abortion without parental consent. In Missouri, the House passed a measure that would require a two-step process for a minor who has two custodial parents. One parent would need to consent to the procedure, and the second parent would need to be notified at least five days prior to the procedure. The state currently only requires one parent to consent, and does not pair parental consent with any type of waiting period requirement. Only four states currently require involvement by both parents (see Parental Involvement in Minors’ Abortions).
Legislators have sought to limit access to abortion services in other ways.
- Legislators in two states are attempting to reduce access to medication abortion. The Oklahoma House passed legislation that would require use of the outdated FDA protocol instead of the more recent evidence-based regimen that has fewer side effects and is less expensive. In Iowa, the House passed legislation that would ban the use of telemedicine in prescribing medication abortion; this measure replace an administrative regulation banning telemedicine that was blocked by state courts.
- Indiana Gov. Mike Pence (R) signed a measure that bans nearly all abortion coverage in private insurance plans in the state and brings to 10 the number of states that restrict abortion coverage in all private health plans. (see Restricting Insurance Coverage of Abortion)
- The Georgia legislature approved legislation to ban abortion coverage in plans sold on the insurance exchange; it is now pending before Gov. Nathan Deal (R), who is expected to sign it. If this measure is signed into law, 25 states would have bans on abortion coverage in exchange plans (see Abortion Coverage Under the Affordable Care Act: The Laws Tell Only Half the Story).
- The Kentucky Senate passed a measure that would require a physician to perform an ultrasound before a woman may obtain an abortion. It would also require the physician to display and verbally describe the image, although the woman would be allowed to look away from the image if she chose.
Other Sexual and Reproductive Health Care
Legislators in several states have also moved to impede access to other sexual and reproductive health services:
- Legislators in the Missouri House have taken aim squarely at family planning providers via two bills. One provision would disqualify independent family planning clinics, such as those operated by Planned Parenthood, from receiving any family planning funds that flow through the state, including federal Medicaid reimbursement. Meanwhile, the other would require a provider receiving Title X family planning funds that either counsels or provides abortions to report to the state on its use of federal Title X monies.
- Despite a federal court order that permits minors younger than 17 to obtain emergency contraception without a prescription, the Oklahoma Senate passed a measure that would require those minors to have a prescription for the medication.
- Measures to expand the ability of health care providers to refuse to provide services have passed a legislative chamber in both Alabama and Missouri. In Alabama, which does not currently have a refusal clause, the measure would allow individual providers, including counselors and social workers, to refuse to participate in abortion or sterilization. The Missouri provisions would allow individual and institutional providers to refuse to participate in any medical procedure to which they have religious, moral or ethical objections; the state’s current law only permits providers to refuse to participate in abortion.