With the legislative year in full swing, some interesting trends are emerging, largely in the wake of last year’s Supreme Court decision in Gonzales v. Carhart. In its most direct effect, the Court’s decision to uphold the Federal Partial-Birth Abortion Ban Act of 2003 set a major precedent that state legislators seem to be following. Twenty-three bills banning “partial-birth” abortion have been introduced in 11 states so far this year (see Bans on “Partial- Birth” Abortion).
Most of these measures are characterized by their definition of the procedure, lack of a health exception and strict penalties. The Court upheld the federal ban, in part, because it found the definition of the procedure to be sufficiently precise so as to exclude most common second-trimester procedures. To follow this precedent, the pending state measures generally lift the federal ban’s definition almost verbatim.
In addition to upholding the federal ban on “partial-birth” abortion, the Court’s decision in Gonzales v. Carhart included language essentially inviting states to utilize their abortion counseling requirements to include the provision of information aimed at dissuading women from obtaining an abortion (see State Abortion Counseling Policies and the Fundamental Principles of Informed Consent). So far this year, most of the attention given to issues related to abortion counseling has been focused on measures that would mandate the provision of information or services related to ultrasound prior to an abortion.
Most dramatically, measures in eight states (Florida, Kentucky, Missouri, North Carolina, Oklahoma, Tennessee, Virginia and West Virginia) would go so far as to require the provider to perform an ultrasound prior to any abortion. Some of these would require that the woman be given the opportunity to review the image, while others would not give her that choice. Bills that have passed one house of the legislature in Kentucky and Oklahoma require the provider to review the image with the woman, while permitting the woman to “avert” her eyes from the image if she chooses. Fifteen states had laws on ultrasound provision as of March 31, 2008 (see Requirements for Ultrasound).
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