The year 2020 is shaping up to be a tumultuous one for abortion rights, as the U.S. Supreme Court hears a case that could seriously undermine them. At the same time, some states are racing to protect and expand abortion access, recognizing that the Supreme Court’s standard for abortion rights, established in 1973’s Roe v. Wade and subsequent decisions, is a floor, not a ceiling. Several states are expected to take action, following the record nine states that enacted proactive laws on abortion in 2019.
These proactive actions take several forms:
- protecting abortion rights by creating legal protections consistent with those established in Roe and prohibiting state interference in reproductive choices;
- repealing unnecessary restrictions such as mandatory waiting periods and excessive standards for physical facilities; or
- improving availability and affordability by expanding who can provide abortion and by requiring abortion coverage or directly funding it.
Regardless of what happens at the Supreme Court this spring, states must continue to be proactive on abortion. A Supreme Court decision that weakens abortion rights and returns decisions about abortion back to state lawmakers would make reforms even more urgent—and would potentially give states more options than Congress to protect and bolster both abortion rights and abortion access.
Protecting Abortion Rights
- Vermont recognized the right to abortion and other reproductive health services without state interference throughout pregnancy.
- Illinois, New York and Rhode Island affirmed the right to abortion prior to fetal viability, and after viability to protect the life and health of a pregnant person, and repealed pre-Roe restrictions.
- Massachusetts and Nevada each repealed unenforced criminal abortion statutes.
In 2020, Massachusetts legislators are considering a bill (S. 1209/H. 3320) to guarantee the right to an abortion after 24 weeks of pregnancy in cases of life or health endangerment or a diagnosed lethal fetal anomaly.
These laws are intended to safeguard against a loss of abortion rights should U.S. constitutional protections be gutted, but legal protections that contain gestational age limits fall short of what is needed. Any gestational age ban can have harmful consequences for people seeking abortion by denying them the services they need and the autonomy they deserve—often with lasting emotional and economic consequences.
Vermont and Oregon offer more robust models, prohibiting state interference before and during pregnancy to ensure that an individual’s reproductive choices and health remain paramount. The District of Columbia could be the first state in 2020 to establish similar protections by approving B. 434. The bill would also protect health care professionals against discrimination by their employer for providing reproductive health services.
Repealing Unnecessary Restrictions
States have also moved to repeal unnecessary and burdensome restrictions on abortion provision. The Virginia legislature is considering a bill in the 2020 legislative session (S. 733) to repeal multiple restrictions:
- a 24-hour waiting period, which evidence shows only increases the logistical barriers to abortion;
- a mandatory ultrasound requirement, which is not medically necessary; and
- an excessive standard for physical facilities, which the U.S. Supreme Court declared creates an undue burden for those seeking abortion and does not improve abortion safety.
Parental involvement laws are also long overdue for repeal. As part of S. 1209/H. 3320, the Massachusetts legislature is considering a repeal of the state’s parental consent law, a restriction that has a disproportionate impact on young people of color and young people with low incomes.
Improving Availability and Affordability
In addition to putting strong legal protections in place, states are working to ensure that abortion is available and affordable in practice. Nearly nine in 10 U.S. counties lack an abortion clinic, and the cost of abortion—on average more than $500 for an early procedure—can be unaffordable for many people.
Allowing advanced practice clinicians (such as nurse practitioners, certified nurse midwives and physician assistants) to provide abortion would increase availability. Reforms from 2019 in Illinois, Maine and New York that allow advanced practice clinicians to provide first-trimester abortions could be followed in 2020 by similar expansions in Hawaii and Virginia, where bills have already been introduced.
States could alleviate cost barriers to abortion by requiring private insurers and state Medicaid plans to cover abortion, or by directly funding abortion services. For example, Oregon established a fund in 2017 to pay for abortion and reproductive health services for people excluded from Medicaid, including many immigrants. Massachusetts is considering a similar program in 2020 (as part of S. 1209/H. 3320). A bill introduced in the New York legislature (A. 861/S. 6632) would establish a grant program for nonprofit organizations that provide financial and logistical support for people seeking abortion, echoing a similar program established by New York City in 2019.