Reproductive health and rights were once again the subject of extensive debate in state capitols in 2012. Over the course of the year, 42 states and the District of Columbia enacted 122 provisions related to reproductive health and rights. One-third of these new provisions, 43 in 19 states, sought to restrict access to abortion services. Although this is a sharp decrease from the record-breaking 92 abortion restrictions enacted in 2011, it is the second highest number of new abortion restrictions passed in a year.
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Against the backdrop of a contentious presidential campaign in which abortion and even contraception were front-burner issues —to a degree unprecedented in recent memory—supporters of reproductive health and rights were able to block high-profile attacks on access to abortion in states as diverse as Alabama, Idaho, Minnesota, Pennsylvania and Virginia. Similarly, the number of attacks on state family planning funding was down sharply, and only two states disqualified family planning providers from funding in 2012, compared with seven in 2011. That said, no laws were enacted in 2012 to facilitate or improve access to abortion, family planning or comprehensive sex education.
Twenty-four of the 43 new abortion restrictions were enacted in just six states. Arizona led the way, enacting seven restrictions; Kansas, Louisiana, Oklahoma, South Dakota and Wisconsin each enacted at least three. Although some of the most high-profile debates occurred around legislation requiring that women seeking an abortion be required to first undergo an ultrasound or imposing strict regulations on abortion providers, most of the new restrictions enacted in 2012 concerned limits on later abortion, coverage in health insurance exchanges or medication abortion.
Mandating Non-Medically Necessary Procedures Prior to Abortion: Mandatory ultrasound provisions are intended to convince a woman to continue her pregnancy to term and require a provider to perform an ultrasound even when one is not medically necessary. At the beginning of 2012, it appeared that a number of states were poised to adopt such laws. However, in February, a firestorm erupted in Virginia when it became known that the proposed mandate would, in practice, necessitate performance of a transvaginal ultrasound. The controversy not only led to passage of a somewhat weaker requirement in Virginia but also is widely seen as having blunted efforts to mandate ultrasound in Alabama, Idaho and Pennsylvania. With the addition of Virginia, eight states now require an ultrasound prior to receiving an abortion.
Targeted Regulation of Abortion Providers (TRAP): In 2012, Arizona, Michigan and Virginia took steps to establish stringent regulations that affect only surgical and medication abortion providers, but not other providers of outpatient surgical and medical care. A law enacted in Arizona requires the state health department to develop regulations that include rules on follow-up procedures after a medication abortion, requirements for reporting abortion complications and penalties for noncompliance. In Michigan, legislation enacted at the very end of the year directs the state health department to develop regulations that will require providers that perform at least 120 abortions per year to meet the same architectural and licensing requirements as ambulatory surgical facilities. In Virginia, Gov. Bob McDonnell approved regulations requiring all abortion clinics performing at least five procedures a month to meet the same architectural standards as hospitals; the regulations now return to the Board of Health for the final review.
Hospital Privileges: Legislation to require abortion providers to have hospital admitting privileges was introduced in five states and enacted in three (Arizona, Mississippi and Tennessee); this provision is not mandated for other outpatient surgical and medical providers. In the most stringent of the new laws, the provision enacted in Mississippi requires abortion providers to have admitting privileges at a local hospital and to be certified in obstetrics and gynecology or eligible for certification. As soon as the restriction was signed into law, the state’s sole abortion clinic filed a legal challenge. In July, a U.S. district court judge ordered that the clinic be given time to apply for hospital privileges. By December, when all local hospitals had refused privileges to the clinic’s providers, the agency once again asked the court to enjoin enforcement so the clinic can remain open.
Later Abortion: Arizona, Georgia and Louisiana enacted measures to ban abortion prior to fetal viability in direct conflict with U.S. Supreme Court decisions. Moreover, the exceptions contained in these restrictions do not allow for an abortion when necessary to protect a woman’s life or health, as required by the Court. Of the three laws, only the Louisiana law is in full effect. It bans abortion at 20 weeks postfertilization (22 weeks after the woman’s last menstrual period or LMP). Due to a court order, the enforcement of the Georgia ban is limited to abortions after viability. Both allow exceptions to protect the woman’s life, avert substantial and irreversible” damage to the woman's physical health or terminate a pregnancy that has been diagnosed as “medically futile.” Arizona’s provision prohibits abortion at 18 weeks postfertilization (20 weeks LMP); enforcement of the restriction has, so far, been blocked by the ninth U.S. Circuit of Appeals. Aside from the disputed Arizona and Georgia provisions, seven states ban abortion at 20 weeks postfertilization.
In addition, a New Hampshire provision restricting so called “partial-birth” abortion will take effect in 2013, at which time 19 states will have such bans.
Abortion Coverage: Alabama, South Carolina, South Dakota and Wisconsin enacted provisions banning abortion coverage in the insurance exchanges being established under the Affordable Care Act. These restrictions limit a woman’s ability to obtain a health care plan that provides for her full reproductive health care needs and treats abortion as separate from other health care services; 20 states now restrict abortion coverage available through state health insurance exchanges.
Medication Abortion: In 2012, three states limited provision of medication abortion by prohibiting the use of telemedicine, which is becoming a routine part of health care, particularly in rural areas. Michigan, Oklahoma and Wisconsin enacted provisions requiring that the physician prescribing the medication for the abortion be in the same room as the patient; seven states now prohibit the use of telemedicine.
Mandatory Counseling and Waiting Periods: South Dakota and Arizona enacted provisions requiring a woman seeking an abortion to obtain counseling that includes inaccurate or irrelevant information; 18 states now require that women seeking an abortion be given misleading information, such as asserting a link between abortion and an increased risk of breast cancer or negative mental health consequences. Meanwhile, the new ultrasound mandate in Virginia requires that women who live less than 100 miles from the clinic undergo the ultrasound 24 hours in advance of the abortion compelling women to make two trips to the clinic before receiving an abortion; 10 states now have laws that necessitate a woman to make two trips. Also in 2012, Utah increased the length of its mandated waiting period from 24 to 72 hours.
Parental Involvement: Two states adopted requirements that either mandate parental involvement or make it more cumbersome for a minor to use the judicial bypass procedure to obtain an abortion in the absence of parental involvement. Voters in Montana approved a ballot initiative requiring that the parents of a minor under 16 be notified prior to an abortion; this measure replaces an existing state law that had been blocked in court. New Hampshire enacted a provision that extends the time a court may deliberate on a judicial bypass request from 48 hours to two business days; 38 states require parental involvement in a minor’s decision to have an abortion.
Family Planning Funding: Family planning programs largely escaped steep budget cuts in 2012. Of the 19 states in which funding decisions were made through the legislative budget process, family planning funds were the subject of steep cuts only in Maine, where funding was slashed by 25%.
Restrictions on Family Planning Providers: In 2011, seven states moved to disqualify certain family planning providers from eligibility for funding (Kansas, Wisconsin, North Carolina, New Hampshire, Tennessee, Indiana and Texas), but only two states added new restrictions in 2012. Arizona and North Carolina effectively barred family planning clinics not operated by health departments from being eligible for family planning grant funds; in practice, these restrictions affect only clinics operated by Planned Parenthood affiliates. That brings to nine the number of states that restrict access to family planning funds.
Insurance Coverage of Contraceptive Services: Provisions relating to contraceptive coverage mandates—and specifically which employers may refuse such coverage—were introduced in eight states and enacted in two. Arizona expanded its existing exemption to permit any employer or plan enrollee to opt out based on their religious belief, while Missouri attempted to add an exemption from the federal mandate included in the Affordable Care Act. The Missouri exemption has been blocked from enforcement by a state court. Eight states have an “expansive” exemption to their contraceptive coverage mandates.
Adolescents and Sex Education
Between 2007 and 2010, seven states enacted legislation related to sex education, and all but one expanded access to comprehensive sex education or added requirements that the sex education provided be medically accurate. Over the past two years, however, five states enacted legislation, and all but one supported abstinence-only education; 26 states now stress abstinence in sex education.
Sexually Transmitted Infections (STIs)
In 2012, Arkansas and Idaho expanded access to treatment for STIs. Both states enacted provisions allowing medical providers to treat a patient’s partner for chlamydia and gonorrhea without having seen the partner; 26 states now explicitly permit treatment of a patient’s partner.
Pregnancy and Birth
Ten states and the District of Columbia enacted new provisions related to pregnancy and birth in 2012. Among those, Colorado, Kentucky, Oklahoma and the District of Columbia addressed issues related to substance abuse and pregnancy; 37 states and the District of Columbia now have policies related to substance abuse and pregnancy. Further, Delaware and West Virginia expanded HIV testing of pregnant women.
Environmental Exposure to Reproductive Toxins
Six states and the District of Columbia enacted provisions related to reproductive health and exposure to harmful substances such as lead, mercury, Bisphenol-A (BPA) and pesticides. Provisions to protect children from lead exposure were enacted in Louisiana and Nebraska. Meanwhile, Connecticut, Illinois and Oregon took steps to keep mercury out of the environment. Also, Illinois banned the use of BPA in reusable bottles and cups for young children, and the District of Columbia required the development of regulations prohibiting the use of pesticides near most schools and child-occupied facilities.