Laws Affecting Reproductive Health and Rights: State Trends at Midyear, 2011
The 2011 state legislative season is rapidly drawing to a close, but some states continue to wrestle with their budgets for the fiscal year that began, in most cases, on July 1. Only 10 state legislatures remain in session, and additional states are likely to adjourn in the coming weeks.
In the first half of the year, states enacted 115 new provisions related to reproductive health and rights. Fully 68% of these new laws seek to restrict access to abortion services, a sharp increase from last year, when 26% of new laws restricted abortion.
The 80 abortion restrictions enacted this year is more than double the previous record of 34 abortion restrictions enacted in 2005, and more than triple the 23 enacted in 2010. All of these new provisions were enacted in just 19 states.
Although five states (IN, KS, ND, SD and TX) adopted laws related to abortion counseling and waiting periods in 2011, a measure adopted by South Dakota at the end of March went significantly farther than those approved in other states. The law expands the preabortion waiting period to 72 hours, requires the woman to visit a crisis pregnancy center in the interim and mandates that abortion counseling be provided in-person by the physician who will perform the procedure. The counseling must include information on all known risk factors related to abortion, even if the data are flawed. The law is currently not in effect, pending the outcome of a legal challenge.
Legislators in 15 states introduced measures based on a law adopted in Nebraska last year. The provision bans abortions at 20 weeks of gestation, based on the spurious assumption that a fetus can feel pain at that point; under the measure, abortions may be performed after that point only if the woman’s life is endangered or if there is a risk of “substantial and irreversible physical impairment of a major bodily function.” So far this year, similar measures have been adopted in five states (AL, ID, IN, KS and OK, see State Policies on Later Term Abortion). These laws appear to conflict with Supreme Court rulings barring states from placing an undue burden on women seeking an abortion prior to viability, a point that occurs well past 20 weeks.
Ohio is taking a different approach to achieve the same goal of banning abortion. In June, the House adopted a measure that would ban abortion once a fetal heartbeat can be detected, which usually occurs between six and 10 weeks’ gestation. The bill is awaiting action in the Senate.
With plans for the implementation of health care reform underway in most states, the issue of insurance coverage for abortion was considered in 24 states and restrictions were enacted in eight. In four states (KS, NE, OK and UT), the new laws restrict abortion coverage under all private health insurance plans. These restrictions will apply to coverage that will be available through the health exchanges being set up, as will new measures enacted in four other states (FL, ID, IN and VA). Including these new laws, eight states now restrict all abortion insurance coverage that is offered (including coverage through an exchange), and six others have restrictions that apply only to coverage through health exchanges (see Restricting Insurance Coverage of Abortion).
Legislatures devoted significant attention to medication abortion for the first time during the 2011 session; measures were introduced in 14 states and enacted in six. Medication abortion has become an integral part of abortion care, now accounting for 17% of procedures provided in nonhospital clinics.
Lawmakers considered two types of restrictions related to medication abortion. Laws enacted this year in Kansas and Oklahoma require abortion providers to use a protocol that was specified by the FDA when the method was approved in 2000. This protocol has since been supplanted by a new one that, based on a substantial body of evidence, supports a more streamlined procedure under which women are given a lower dose of the medication and allowed to take the second dose at home, eliminating a second visit to the abortion provider; the new protocol also allows use of medication abortion up to 63 days’ gestation, rather than the 49 days permitted under the FDA protocol. A similar restriction that was enacted by Ohio in 2004 was recently upheld in federal court.
In an entirely new approach to restricting access to abortion, Kansas and Oklahoma, plus four other states (AZ, ND, NE and TN) banned the use of telemedicine for the provision of medication abortion, a procedure through which a woman can go to an abortion provider, receive counseling via videoconference from a physician in another location who then authorizes on-site staff to dispense the medication. Use of telemedicine in general has been growing rapidly in recently years, and is widely credited with bringing access to medical care to areas, especially rural communities, where services have often been inaccessible. (In a parallel move, the U.S. House of Representatives recently approved legislation that would ban the FDA from considering changes to its protocol for medication abortion and prohibit the use of federal funds for establishing telemedicine programs that include medication abortion; the bill is awaiting action in the Senate.)
For the first time in recent memory, state legislatures devoted significant attention to issues related to family planning this year. Much of this came in the context of state budget bills. Considering the historical fiscal crises facing many states, it is significant that family planning escaped major reductions in nine of the 18 states (CO, CT, DE, IL, KS, MA, ME, NY and PA) where the budget has a specific line-item for family planning. The story, however, was different in the remaining nine states. In six (FL, GA, MI, MN, WA and WI), family planning programs sustained deep cuts, although generally in line with decreases adopted for other health programs. (Five of these six states have completed work on their budget; Minnesota’s budget has not been finalized yet, but the measure approved by the legislature would cut family planning in line with cuts to other programs.) In the other three states, however, the cuts to family planning funding were disproportionate to those to other health programs: Montana eliminated the family planning line item, and New Hampshire and Texas cut funding by 57% and 66%, respectively.
Moreover, it is especially noteworthy in this fiscal climate that two states moved to expand Medicaid eligibility for family planning. In Maryland, the legislature directed the state to extend coverage to individuals with an income up to 200% of the federal poverty level; the state currently has a limited expansion that extends coverage only to women following a Medicaid-funded delivery. The state received approval for this change from the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, at the end of June and the expansion is expected to go into effect in January 2012. Washington State dramatically reversed earlier attempts to roll back its existing Medicaid family planning expansion entirely; the legislature directed the state to raise eligibility under the program from 200% to 250% of the federal poverty level.
Nonetheless, five states moved to restrict funding to family planning providers, largely paralleling similar attempts made in Congress earlier in the year. These states took three distinct approaches:
- Two states moved to restrict eligibility for family planning funds for providers that have any association with abortion. Indiana prohibits agencies that provide abortion from receiving any funding through the state, including Medicaid. (On June 30, a federal district court blocked enforcement of the legislation pending resolution of a legal challenge filed by the state’s Planned Parenthood affiliate.) Wisconsin prohibits agencies that provide abortion services or referrals from receiving funding through the state. Neither state is a Title X grantee, so Title X funds are not affected by the restriction. Planned Parenthood is the only agency that is affected in either state.
These new mesaures join longstanding provisions in three other states (CO, OH and TX) requiring agencies that receive funding— either state family planning funds or federal block grant allotments— through a state agency to be separate from agencies that provide abortion serbices (see State Family Planning Funding Restrictions).
- North Carolina adopted a measure that explicitly bans Planned Parenthood from obtaining funding, including Medicaid, through the state. Since North Carolina is a Title X grantee, the measure blocks Planned Parenthood affiliates in the state from receiving Title X funds. (Planned Parenthood of Central North Carolina has filed a lawsuit challenging the constitutionality of this provision; as of this writing, the measure remains in effect.)
- Two additional states took aim at agencies that provide mostly family planning services, regardless of whether they have any connection to abortion. Kansas enacted a measure that limits the distribution of Title X funds to health departments, hospitals and community health centers; other types of family planning providers are not eligible. (Planned Parenthood of Kansas and Mid-Missouri has filed a legal challenge to the provision; as of this writing, the measure remains in effect.) Texas, meanwhile, adopted a measure that gives priority to health departments, community health centers and hospitals in the distribution of family planning funds, including Title X funds; other family planning providers could receive funding should any remain.