State Policy Trends at Midyear 2021: Already the Worst Legislative Year Ever for U.S. Abortion Rights
In the first six months of the year, many state legislatures engaged in an assault on many civil rights, including abortion, voting and transgender rights. More abortion restrictions—90—have already been enacted in 2021 than in any year since the Roe v. Wade decision was handed down in 1973. Many of these actions took place in the beginning of the year, despite the need for state legislatures to address critical issues ranging from racial equity to the COVID-19 response and pandemic-related health care.
In addition to their relentless attacks on abortion, several state legislatures have focused on measures that target transgender youth by banning gender-affirming care or restricting their participation in sports. These laws are part of a new wave of restrictions that build on transphobic legislation from previous years, including "bathroom bills" that require individuals to use the bathroom that corresponds to their sex as assigned at birth and bills to ban puberty blockers, which give young people time to make a decision about transitioning.
Even in the midst of these overwhelmingly negative developments, however, other states have enacted policies that protect and expand access to abortion and maternal health care.
Abortion Restrictions and Bans
The 90 abortion restrictions enacted this year already surpass the count from 2011, previously the worst year on record, when 89 restrictions were enacted. In total, state legislatures have enacted 1,320 restrictions in the 48 years since Roe was decided, including 573 restrictions enacted since 2011. This year, 90% of the enacted restrictions were adopted in states already considered to be hostile toward abortion rights.
The 2021 abortion restrictions amplify the harm of earlier ones: Each additional restriction increases patients’ logistic, financial and legal barriers to care, especially in regions where entire clusters of states are hostile to abortion.
Compounding the state-level attacks, the U.S. Supreme Court, which now has a 6-3 antiabortion majority, agreed to hear a case involving Mississippi’s 15-week abortion ban. The Mississippi ban is unconstitutional according to almost five decades of existing Supreme Court rulings, which prohibit a state from banning abortion before viability (generally at 24 to 26 weeks of pregnancy). Although lower courts struck down the ban, this fall the Supreme Court will consider whether a previability abortion ban is constitutional.
Even before the Supreme Court hears this new case, affordable and accessible abortion care is only a right on paper for many people. If the Court weakens or eliminates abortion protections, the effects of that decision would be felt the most by people already marginalized and oppressed by structural inequities and lack of abortion access, including people with low incomes, people of color, young people and LGBTQ people.
Abortion bans. These prohibitions have the potential to be the most consequential of the restrictions enacted so far this year: Eleven have been enacted in eight states.
- Near-total abortion bans: Both Arkansas and Oklahoma enacted legislation that bans abortion at any point in pregnancy, except when the patient’s life is endangered (and, in Oklahoma, if the pregnant individual has a severe health condition).
- Six-week abortion bans: Four states (Idaho, Oklahoma, South Carolina and Texas) adopted bans on abortion at six weeks of pregnancy with very limited exceptions. The Texas ban comes with a new, uniquely cruel twist that would allow anyone who is opposed to abortion—regardless of where they live or whether they have any association with a patient—to sue an abortion provider or anyone who helps a patient obtain an abortion (for example, by providing financial help or transportation).
- "Trigger" bans: Oklahoma and Texas also enacted bans that would go into effect if Roe v. Wade is overturned.
- Gestational age bans: Montana enacted a law that prohibits abortion starting at 20 weeks of pregnancy.
- Reason-based bans: In South Dakota, a new law bans abortion if there is a diagnosis of Down syndrome. Arizona banned abortion in cases of fetal abnormality.
Medication abortion restrictions. Several states continued a trend by focusing on restricting medication abortion. New restrictions were enacted in eight states (Arizona, Arkansas, Indiana, Montana, Ohio, Oklahoma, South Dakota and West Virginia). Antiabortion legislators focused on this issue in response to the push for broader telehealth access to medication abortion during the pandemic. Currently, the U.S. Food and Drug Administration (FDA) is allowing patients to receive medication abortion pills by mail for the duration of the pandemic. The agency is reviewing whether to permanently allow the medication to be mailed.
Many of the new restrictions prohibit telehealth for medication abortion, either by specifically banning use of telehealth for the procedure or by requiring patients to make an in-person visit to a provider. Arizona, Arkansas and Oklahoma went even further by disregarding the FDA decision and prohibiting providers from mailing the medication to patients. States also adopted a range of other unnecessary and burdensome restrictions, including limiting the number of weeks of pregnancy when medication abortion can be used, requiring providers administering abortions to have referral arrangements with another physician in case of emergencies, and mandating certification for medication abortion distributors and manufacturers. Some states (Arkansas, Indiana, South Dakota and West Virginia) also continued to adopt or revise counseling requirements for patients based on the unsubstantiated belief that it is possible to reverse a medication abortion.
Targeted regulation of abortion providers (TRAP). Seven state legislatures (Arizona, Arkansas, Indiana, Kentucky, Ohio, Oklahoma and Tennessee) are relying on the well-worn playbook of imposing unnecessary and intentionally burdensome restrictions on abortion clinics and providers. Arkansas and Kentucky passed laws making it easier for state agencies to close abortion clinics. Arizona and Tennessee adopted laws that require burial or cremation of fetal tissue. Oklahoma limited abortion provision to board-certified obstetrician-gynecologists. Ohio requires abortion providers who cannot obtain a transfer agreement with a private hospital to have a physician available who has admitting privileges at a hospital within 25 miles of the abortion clinic.
Regulating care for an infant born after abortion. Five states (Alabama, Kentucky, Montana, South Dakota and Wyoming) adopted legislation that imposes requirements on providers in the unlikely event that an abortion results in a delivery. These statutes are duplicative in four of the states (Alabama is the exception), which already had "born alive" laws on the books. They also duplicate medical ethics, and state and federal criminal laws that already protect infants. In effect, these bills serve as a barrier to abortion care while failing to provide additional care to infants.
Local bans. Efforts to ban abortion at the local level are also concerning. In May, voters in Lubbock, Texas approved a municipal abortion ban. Over the past three years, at least 30 localities in six states (Arkansas, Indiana, New Mexico, New York, Ohio and Texas) have adopted similar ordinances. Some of these ordinances also target specific abortion funds and organizations providing other types of practical support to abortion patients. (Seven Texas cities removed provisions that criminalized abortion-supporting organizations because of legal action.) Lubbock was the first of these 30 localities that had an abortion provider. After the Lubbock ordinance was adopted, Planned Parenthood of Greater Texas filed suit against it. A federal judge dismissed the case in early June, allowing the city’s ban to go into effect, and the local Planned Parenthood clinic was forced to stop providing most abortion care.
Attacks on Transgender Health and Rights
The number of bills pending in state legislatures to target the rights of transgender and nonbinary individuals has already hit record levels this year. Attacks on transgender rights and on reproductive rights both employ misinformation, prejudice and stigma to restrict bodily autonomy and control individuals’ decision-making about their own lives.
Much of this legislation targets transgender and nonbinary young people. In Arkansas, the legislature overrode the governor’s veto and enacted a law that prohibits health care providers from offering gender-affirming care to people younger than 18. The law also prohibits health insurance plans and Medicaid from covering gender-affirming care for people in that age group. The American Civil Liberties Union has challenged the law, and numerous medical associations and the U.S. Department of Justice have submitted filings opposing it. Five states (Alabama, Arkansas, Mississippi, Montana and Tennessee) have passed new laws that require individuals participating in school sports to join the gendered team that corresponds to their "biological sex." The laws in Arkansas and Mississippi also prohibit gender-bias complaints related to sports participation. Tennessee enacted a bill that could deny transgender people access to school bathrooms that match their gender identity.
Abortion protections. Although abortion restrictions took center stage in 2021, policies that protect and expand abortion rights and access have been enacted in a handful of states.
- New Mexico repealed its pre-Roe abortion ban so that it cannot be enforced if the U.S. Supreme Court overturns abortion rights.
- Virginia repealed the abortion coverage ban in its state insurance exchange.
- A new law in Hawaii permits advanced practice nurses to provide both medication and procedural abortion, also known as surgical abortion, in the first trimester.
- In Washington, college health insurance plans that cover maternity care must now also cover abortion care.
- In Colorado, a new law ensures that public funds, including Medicaid, pay for any abortion services. Previously, public funds could only be used to pay for abortion in cases of life endangerment, rape or incest.
Maternal health. Several state legislatures continued a trend of adopting policies aimed at improving maternal health and decreasing maternal mortality. Many of these policies are designed to improve health care access and outcomes for Black, Indigenous and other people of color. Three trends stand out: increasing Medicaid coverage, improving health services for those who are incarcerated and expanding the work of state maternal mortality review committees.
Until this year, Medicaid typically provided 60 days of coverage after delivery. The American Rescue Plan signed into law by President Biden in February authorizes state Medicaid programs to extend coverage up to one year postpartum. So far this year, four states (Florida, Maryland, Washington and West Virginia) have passed laws that direct their state Medicaid programs to seek federal approval to include this coverage. In addition, Illinois became the first state to receive federal approval to implement one-year postpartum Medicaid coverage, and two other states (Georgia and Missouri) received federal approval for more limited expansions.
Five states (Mississippi, New York, Oklahoma, Texas and Utah) took steps to improve or establish maternal or reproductive health care for incarcerated individuals. The broadest of these laws is a Mississippi measure that protects pregnant and postpartum individuals by prohibiting the use of restraints and solitary confinement, allows new parents and infants to remain together for at least 72 hours, and requires the provision of appropriate nutrition, supplements and menstrual hygiene products.
North Dakota became the 46th state to create a maternal mortality review committee, and four other states (Indiana, Massachusetts, Nevada and New Mexico) expanded the scope of their committees. The North Dakota committee will include health care providers and representatives of communities disproportionately affected by maternal mortality and morbidity—and the committee will determine whether each death was preventable, develop recommendations to reduce maternal mortality and publish an annual report. In the other four states, the amendments require committees to include representatives from communities particularly affected by maternal mortality as well as additional types of health care providers; expand the review period to one year after delivery; and direct committees to address racial disparities in maternal mortality.