Radical Attempts to Ban Abortion Dominate State Policy Trends in the First Quarter of 2019
Abortion rights took center stage in state legislatures during the first three months of 2019. While a number of states took steps to protect abortion access, these efforts were overshadowed by attempts to restrict abortion access. Indeed, antiabortion policymakers wasted no time revealing their true agenda: banning abortion.
Although the overall number of abortion restrictions introduced so far in 2019 was essentially the same as in the first quarter of 2018, the extreme nature of this year’s bills is unprecedented. In particular, conservative state legislatures are looking to enact abortion bans in the hopes of kick-starting litigation that will give the U.S. Supreme Court, and its majority of conservative justices, ample opportunity to undermine or eliminate abortion rights. Legislation under consideration in 28 states would ban abortion in a variety of ways:
- Trigger bans that would automatically make abortion illegal if Roe v. Wade is overturned;
- Gestational age bans that would prohibit abortion at a specific point in pregnancy, such as six, 18 or 20 weeks after the last menstrual period (LMP);
- Reason bans that would prohibit abortion based on fetal characteristics (such as sex, race or disability status); and
- Method bans that would bar providers from performing a specific type of abortion.
These regressive attacks on abortion are just one side of the story. Concerned about the future of abortion rights under a hostile U.S. Supreme Court, progressive legislators in 13 states are pursuing legislation that affirms abortion rights, by establishing a legal standard for abortion, or repeals existing restrictions.
Meanwhile, although abortion rights were the focus in many state legislatures, reproductive health issues related to contraceptive access and sex education were also debated and addressed—in particular, legislation that would ensure contraceptive coverage in health insurance plans, allow pharmacists to write prescriptions for contraceptives and require comprehensive sex education in schools.
In the first quarter of 2019, governors in four states (Arkansas, Kentucky, Mississippi and Utah) signed a total of eight measures that ban abortion in one way or another. Similar measures passed the legislature in Arkansas and Georgia and were adopted by one chamber of the legislature in six other states. (This level of legislative attention is much higher than during the first quarter of 2018, when two abortion bans passed one state legislative chamber and one had been approved by the legislature.) While the approaches vary, one thing is clear: These efforts to ban abortion violate long-standing and fundamental holdings of the U.S. Supreme Court that protect abortion rights and limit when a state can restrict access.
The most prominent trend in abortion restrictions are bills that ban abortion at six weeks LMP, once a fetal heartbeat is detected. So far this year, these restrictions have been enacted in Kentucky and Mississippi; passed the legislature in Georgia; and passed one chamber of the legislature in Missouri, Ohio and Tennessee. The new law in Kentucky would have gone into effect immediately, but a federal district court issued an order blocking enforcement. The Mississippi legislation is scheduled to take effect in July. Only two other states, Iowa and North Dakota, have ever enacted six-week abortion bans, both of which have been struck down by the courts.
Other abortion bans
Several other abortion bans were also enacted. Governors in Arkansas and Utah approved bans on abortion at 18 weeks LMP, the first time abortion has been banned at this point in a woman’s pregnancy. Kentucky banned abortion based on a fetus’ race or predicted sex or diagnosis of a genetic anomaly (this law, like the Kentucky law banning abortion at six weeks, is not in effect as a result of court action), and Utah enacted a law that bans abortion when a fetus is diagnosed with or thought to have Down syndrome. (This law is scheduled to take effect in May.) Currently there are eight states that ban abortion for purposes of sex selection. One of these states also bans abortion due to race and another bans abortion in cases of genetic anomaly. Additionally, Arkansas and Kentucky became the fifth and sixth states that would ban abortion if Roe v. Wade is overturned.
At the same time, measures to protect abortion rights are also receiving attention from state legislatures, primarily in the Northeast. So far this year, 13 states have introduced legislation that would establish legal protections for abortion or repeal outdated abortion laws.
New York led the way when it enacted the Reproductive Health Act on January 22, the 46th anniversary of Roe v. Wade. This new law affirms the right to abortion until the fetus is viable and when the patient’s life or health is at risk. It also repealed the state’s requirement that an abortion be provided by a physician. Similar legislation has passed the first legislative chamber in the New Mexico, Rhode Island and Vermont legislatures. With the addition of New York, 10 states have established legal protections for abortion.
State legislatures continue to adopt new and amend existing laws related to contraceptive coverage. In the first quarter, bills were introduced in 21 states and attracted legislative attention in three: New Mexico, New York and Washington.
Bills on the move
The New York bill, which has passed the legislature, would expand the state’s contraceptive coverage guarantee by requiring private insurance plans to cover, without cost sharing, all FDA-approved contraceptives, emergency contraception, and male and female sterilization. It would also allow enrollees in private health plans and Medicaid to obtain a 12-month supply of their contraceptive method at one time.
The New Mexico measure, which has also passed the legislature, would expand existing law to require private insurance plans to cover, without cost sharing, at least one of each type of FDA-approved contraceptive (including any type that a provider deems medically necessary), sterilization and emergency contraception, as well as maintenance and follow-up services. It would also require the state Medicaid program to cover 12 months of prescription contraceptives at one time.
In Washington state, the Senate approved omnibus legislation that would bar private health plans, student health plans and Medicaid from automatically denying reproductive health care services based on gender identity; and require coverage of condoms, services related to sexual assault, well-person preventive visits, prenatal vitamins, breast pumps, STI screening, and pre- and postexposure prophylaxis. The legislation would also create a family planning services program for individuals at least 20 years old whose residency status is undocumented or nonqualified.
Pharmacy access bills
In the past six years, seven states and the District of Columbia have enacted laws that allow a pharmacist to prescribe and dispense contraceptives directly to consumers. So far this year, pharmacy access bills were introduced in nine state legislatures. West Virginia enacted a measure that allows pharmacists to dispense prescription hormonal contraceptives—including oral contraceptives, rings and patches—to an adult patient without a prescription from any provider. Two similar bills have passed one legislative chamber in Arkansas and Missouri.
In the first three months of 2019, legislation on sex education has been introduced in 30 states and DC.
Over the past decade, much of the legislation in this area has focused on instruction to prevent sexual assault and dating violence. However, in the last four years in particular, legislative efforts that include requirements for students to receive instruction on consenting to sex have increased. Last year, three states—Illinois, Maryland and Rhode Island—all adopted requirements on teaching sexual consent. That trend is continuing so far this year: Bills have been introduced in 12 state legislatures and the DC Council.
Sexual consent education enacted
In the first three months of 2019, New Jersey and DC enacted legislation requiring education on sexual consent. (The DC law is under review by Congress.) Both of these laws require age-appropriate instruction. The New Jersey law also includes instruction on the right to refuse unwanted sexual activity and the importance of respecting others’ refusals. The DC law includes instruction on personal boundaries and healthy relationships.
Sex education measures receiving legislative attention
Legislation that requires instruction on sexual consent has also passed one legislative chamber in Arkansas, Colorado and Washington.
The Arkansas measure would require evidence-based education on healthy relationships, as well as provide evidence-based education on healthy relationships and the prevention of unintended pregnancy and STIs through abstinence and contraception.
While the Colorado measure does not require sex education in schools, it would expand the mandate for sex education—when it is offered—to include information on all methods of preventing pregnancy and STIs. These methods include abstinence and all FDA-approved contraceptives, including emergency contraception. The bill would further require information on adoption, abortion, parenting and infant abandonment if education includes pregnancy options, and require education on sexual consent, including recognition and withdrawal of consent. The Colorado bill would also prohibit sex education instruction from endorsing a religion, using shame-based or stigmatizing language, using gender stereotypes or excluding LGBT individuals.
The Washington legislation would expand existing requirements for sex education to include information on affirmative sexual consent and to ensure that the curriculum meets the needs of all youth.