State Policy Trends: Abortion and Contraception in the Crosshairs

The time is now. Will you stand up for reproductive health and rights?

First published online:

In the first three months of 2012, legislators in 45 of the 46 legislatures that have convened this year introduced 944 provisions related to reproductive health and rights. Half of these provisions would restrict abortion access. So far, 75 abortion restrictions have been approved by at least one legislative chamber, and nine have been enacted. This is below the record-breaking pace of 2011, when 127 abortion restrictions had been approved by at least one body in the first quarter of the year, but still higher than usual for an election year. In 2010, for example, only 46 such restrictions had passed at least one house during the first quarter, while in 2008, only 34 had passed one chamber by that point.

This year legislators are particularly focused on measures that require a woman seeking an abortion to undergo an ultrasound; that limit access to medication abortion; and that prohibit abortion at a specific point in gestation. Legislators in several states—mirroring the debate at the national level—are also considering measures allowing employers to refuse to provide insurance coverage for contraceptive methods. (See here for a detailed rundown of all proposed and enacted legislation).

Ultrasound Requirements

So far this year, legislators in 11 states (AK, AL, ID, IA, KY, MI, MN, MS, PA, RI and VA) have introduced provisions that would require a woman to undergo an ultrasound prior to obtaining an abortion.

Meanwhile, in February, a U.S. District Court upheld Texas' 2011 ultrasound law, clearing the way for it to go into effect immediately. In March, Virginia Gov. Bob McDonnell (R) signed a similar measure. Both laws stipulate that certain fetal characteristics must be visible in the ultrasound image to determine gestational age. Although the final versions that were signed into law—unlike an earlier, widely publicized version in Virginia—do not explicitly require providers to perform a transvaginal ultrasound, doing so is likely the only way to achieve the necessary level of clarity, at least for abortions performed in the first trimester. Both laws also require a woman who lives within 100 miles of the abortion facility to obtain an ultrasound at least 24 hours before the abortion, thus necessitating two trips to the facility.

Once the Virginia restriction goes into effect in July, eight states will require a woman to undergo an ultrasound prior to an abortion (see Requirements for Ultrasound).

Medication Abortion Limitations

Legislators in 11 states have introduced restrictions on medication abortion. The provisions introduced in 10 of these states (AL, IN, IA, MI, MN, MS, MO, OK, TN and WI) would prohibit use of telemedicine by requiring that the physician prescribing the medication be in the same room as the patient. Telemedicine bans are awaiting signature in Tennessee and Wisconsin. Currently, four states ban the use of telemedicine to prescribe medication for abortion (see Medication Abortion).

In addition, legislators in seven states (AL, AZ, IN, IA, MI, MS and MO) have introduced measures that would require the provision of medication abortion to be in strict accordance with long-standing FDA protocol. This would prohibit a widely used, simpler protocol that has been demonstrated to be safe and effective.

Gestational Limits

Legislators in 14 states have introduced legislation that seeks to restrict abortion later in pregnancy—but prior to fetal viability. In 10 of these states (FL, GA, IA, LA, MI, MN, MS, NH, VA and WV), the provisions would ban abortion at 20 weeks postfertilization, which is the equivalent of 22 weeks' gestation (as pregnancy is conventionally measured, which is from the woman's last menstrual period). These restrictions are based on a 2010 Nebraska law that has already served as the model for laws in five other states (see State Policies on Later Term Abortion).

The proposed provision in Georgia has passed the legislature and is awaiting signature by Gov. Nathan Deal (R). It would permit an abortion after 22 weeks' gestation only in cases of life endangerment, possible "substantial and irreversible physical impairment of a major bodily function" or fatal fetal impairment.

Legislators in six states (AZ, FL, NH, NJ, OK and SC) have introduced provisions that would ban abortions at other points in pregnancy: 18 weeks postfertilization in Arizona and Oklahoma, 22 weeks postfertilization in New Jersey and South Carolina, 25 weeks postfertilization in Florida and during the third trimester in New Hampshire.

Refusal to Provide Contraceptive Coverage

Legislators in five states (AZ, GA, NH, NJ and NY) with contraceptive coverage mandates have introduced legislation to expand existing exemptions, or create new ones, for certain employers (see Insurance Coverage of Contraceptives). So far this year, provisions have passed one chamber in Arizona, Georgia and New Hampshire.

The Arizona proposal would allow any employer that claims a religious objection to refuse to provide contraceptive coverage; current law provides an exemption only for nonprofit organizations that primarily employ and serve individuals sharing their religious beliefs. (The pending legislation would require coverage in cases where contraceptives are used for noncontraceptive purposes.) The new Georgia exemption would be similar to that in the existing Arizona law, that is, limited to religious employers whose purpose is the inculcation of religious values and that primarily employ individuals sharing those values. The new exemption proposed in New Hampshire mirrors the proposed new provision in Arizona; it would allow any employer to refuse to provide the coverage based on religious beliefs.