Eight Ways State Policymakers Can Protect and Expand Abortion Rights and Access in 2023

Elizabeth Nash, Guttmacher Institute and Isabel Guarnieri, Guttmacher Institute

Since the US Supreme Court overturned Roe v. Wade in June 2022, policymakers at the state level have an even more critical role to play in shoring up and expanding abortion access and rights. Abortion access has shifted dramatically around the country in the past six months, as states across the South, the Plains and the Midwest have banned abortion or restricted access to care. Meanwhile, states mostly along the West Coast and the Northeast have enacted 77 abortion protections, the highest number ever passed in one year.

We expect that the number of attempts to further restrict abortion access in some states will only grow in 2023. In the face of mounting restrictions, state policymakers need to act swiftly to protect bodily autonomy and access to essential health care.

Restricting abortion access not only impacts a particular state’s residents, it also has a ripple effect in states where abortion is available, increasing appointment wait times, straining clinic capacity and delaying care for patients in those states. Bans and restrictions increase the cost and logistical challenges that already made it difficult for many people—especially those with few financial resources and people of color—to access abortion care when Roe was still in place.

Here are eight types of measures state policymakers should advance to expand and support abortion rights and access this year.

1. Allocate Dedicated Funding to Increase Access

Financial and logistical hurdles are the largest barriers to accessing abortion care. The cost of a typical abortion is about $550 before factoring in potential added costs related to timing and travel. Most people who get an abortion are already struggling to make ends meet—some 75% of abortion patients have few financial resources and six in 10 are already parents. Even within states supportive of abortion rights, people may need to travel far to obtain care. This could mean taking time off work, paying for gas, transportation or accommodation, and arranging for child care.

Specific funding for abortion care is critical to expanding access to all who need it. Funds should be allocated among established groups in the state, including abortion funds, practical support organizations and reproductive justice organizations. Considering the regional variation in abortion access, state policymakers should allow out-of-state residents to access these funds as well. Another way states can increase dedicated funding is to invest in abortion-related infrastructure, such as building new clinics.

In 2022, states across the country increased dedicated funding to expand abortion access.

  • California allocated $200 million for reproductive health care, with $110 million earmarked specifically for abortion services and infrastructure. These funds include $20 million for an Abortion Practical Support Fund that will provide grants to both state residents and out-of-state patients. 
  • Massachusetts, New Jersey, New York and Oregon also carved out state funds to help people pay for abortion services.
  • In New Mexico, Governor Michelle Lujan Grisham pledged $10 million for the construction of a new abortion clinic near the Texas border. This clinic will expand access to underserved parts of New Mexico and help support abortion access for Texans who are being denied care.
2. Repeal Existing Restrictions

Removing state restrictions on abortion care is critical to ensuring everyone, especially those with few financial resources or marginalized backgrounds, can obtain an abortion with minimal logistical and financial barriers. Common restrictions policymakers should repeal include:

  • Restrictions on abortion later in pregnancy
  • Physician-only provision requirements
    • Decades of evidence show that nonphysician clinicians—such as physician assistants, certified nurse-midwives and nurse practitioners—can safely and effectively provide abortions.
    • Allowing nonphysician clinicians to provide abortions and expanding training programs for performing abortions would increase the pool of abortion providers and enhance access.
    • In 2022, Maryland passed a law expanding abortion provision beyond physicians to include nurse practitioners, nurse-midwives, physician assistants and other trained medical providers and allocated $3.5 million of the annual state budget for abortion training. Another 19 states and the District of Columbia have similar policies that expand the network of providers able to perform abortions.
  • Parental involvement laws
  • Refusal clauses
    • Nearly every state allows medical institutions and providers to refuse to participate in abortion care. These laws create barriers to care as patients may not know that an abortion is available elsewhere.
    • States can balance the scales for abortion patients by requiring that care through another provider is available, accurate information on other sources of care is offered, medically accurate information about abortion is provided and medical records are promptly transferred if necessary.
3. Expand Public and Private Insurance Coverage of Abortion

The average cost of an abortion at 10 weeks is around $550, and the cost can rise exponentially later in pregnancy. Expanding insurance coverage of abortion is essential to ensure care is accessible and affordable, especially given that people with few financial resources represent the large majority of abortion patients. State policymakers can expand abortion access by ensuring that both state Medicaid programs and private health insurance plans cover abortion under all circumstances.

The Hyde Amendment bars use of federal funds to pay for most abortions through the Medicaid program and state-level restrictions deny insurance coverage of abortion to millions of people. Specifically:

A good example of a state taking concrete action to increase access is Illinois, which started covering abortion for people insured through Medicaid in 2019. In 2022, the state increased Medicaid reimbursement for abortion services by 20%, ensuring that providers are adequately reimbursed for offering abortions.

In addition to abortion coverage bans, many people in the United States are denied access to public or private insurance coverage—for any service, not only abortion—because of their immigration status. States should mitigate these harmful policies as well. For example, Oregon sets the standard for insurance coverage of abortion, as state Medicaid funds cover abortion care, private health plans are required to cover abortion and abortion services are covered for people who are undocumented.

4. Amend the State Constitution to Explicitly Protect Abortion Rights

Enshrining the right to an abortion in the state constitution is one of the strongest actions that can be taken to establish long-term protections for abortion rights and access.

  • In 2022, voters in California, Michigan and Vermont voted decisively to protect the right to abortion care in their constitution. These protections provide a legal firewall against potential efforts by future state legislatures to restrict access to care. In Michigan, the outcome is expected to permanently block a 1931 abortion ban from going into effect.
  • Importantly, these constitutional amendments go beyond abortion by protecting the right to reproductive freedom or autonomy generally, including pregnancy and contraception.
  • State supreme courts in an additional nine states have interpreted their constitution as protective of abortion rights (Alaska, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, New Mexico and South Carolina).
5. Strengthen Legal Protections for People Who Self-Manage an Abortion

An increasing number of people may choose to self-manage an abortion in coming years because of restrictive abortion policies, clinic capacity or for other reasons. State policymakers should strengthen protections to shield people from legal risk, particularly those historically targeted or marginalized by the legal system.

Only three states (Nevada, Oklahoma and South Carolina) have laws that explicitly criminalize self-managed abortion. However, research has found that law enforcement agencies and prosecutors in 26 states have used other criminal laws, including for murder or homicide, to bring charges against people who self-managed an abortion or individuals who supported them. People who are historically marginalized within the criminal justice system—including people of color, people who are undocumented, and members of the LGBTQ community—have been disproportionately targeted and are at heightened risk of criminalization.

Lawmakers must repeal laws that could be used to prosecute people for their pregnancy outcomes or for self-managing an abortion, along with anyone who assists them, and instead enact protections for self-managed abortion.

Medical associations, reproductive health advocates and state governments can also do more to educate health care professionals that reporting individuals to law enforcement for suspected self-management of an abortion is not required by law. Rather, it is a violation of medical ethics related to privacy of patients’ medical information and could deter people from seeking medical care if needed after attempting an abortion or for miscarriage management.

6. Protect Abortion Clinic Staff and Patients from Harassment and Physical Harm

Research shows assaults against abortion clinic staff and patients rose by 128% in 2021 from the previous year. As increased restrictions and heated rhetoric may further embolden anti-abortion groups, state legislators should enact measures that ensure those entering a facility can do so safely.

The federal Freedom of Access to Clinic Entrances (FACE) Act, enacted in 1994, imposes penalties for acts of force, threatening force or physically preventing access to abortion care, although it rarely results in charges or prosecutions. States lawmakers should adopt their own versions of FACE and enhance protections for clinic staff and patients through measures such as:

  • Prohibiting specific acts of violence against abortion providers and patients
    • Fourteen states and DC prohibit specific actions aimed at clinic staff and patients, such as blocking entrances to clinic facilities, threatening or intimidating staff and patients, and damaging property.
    • In 2022, Maine enacted legislation to require an eight-foot buffer zone around health facility entrances to provide safe access for patients, providers and staff. 
  • Protecting the physical space around clinics
    • In 2014, the US Supreme Court struck down a Massachusetts law that established a fixed 35-foot buffer zone around clinics, holding that the law violated protestors’ free speech protections and that the zone was too large. Since then, localities have adopted protection zones around clinics that are more tailored to individual clinics.
    • Localities have experimented with establishing protective zones around an abortion clinic’s entrance or driveway, which denotes a range that protestors are prohibited from crossing without consent.
  • Investing in protections that do not rely on police presence
    • The majority of abortion patients are people of color, who have been disproportionate targets of state violence. Investing in and promoting community support mechanisms such as clinic escort programs and de-escalation training for clinic staff can help people seeking abortion care feel supported and safe without fear of law enforcement intervention based on immigration status, race or another marginalized identity.
    • States can also include clinic staff and patients in address confidentiality programs. These protections can prevent abortion opponents from harassing individuals at home.
    • California updated its FACE Act in 2021 to prohibit taking photos and videos of patients and staff at abortion clinics, as well as enhanced its online privacy laws to protect clinic staff and patient information.
7. Restrict Anti-Abortion Centers

Commonly known as crisis pregnancy centers, anti-abortion centers often target people with few financial resources by providing free but very limited pregnancy services, like pregnancy tests and ultrasounds, and routinely offering false information to delay or interfere with access to abortion services. These centers are usually affiliated with national anti-abortion organizations, evangelical Christian networks or other religious organizations. In some states, these centers also receive public funding. Since 2010, at least 13 states have provided a total of $495 million to these centers.

Restricting anti-abortion centers is critical to halting the spread of abortion misinformation and ensuring people can access compassionate and accurate sexual and reproductive health care.

Anti-abortion centers have been insulated from most state and federal action because of protections for speech under the First Amendment. However, there are still actions that state policymakers can take to restrict their reach and impact.

  • End state funding of these centers. For example, in 2022, Michigan Governor Gretchen Whitmer vetoed $1.5 million that the Republican-led legislature had allocated for anti-abortion centers in the state budget.
  • Enact laws requiring anti-abortion centers to disclose that they do not offer or provide referrals for abortion or contraceptive services and, if applicable, that they do not have medically trained staff on‐site.
  • Enforce state consumer protection laws that prohibit false advertising or deceptive practices by service providers and require the provision of medically accurate information.
  • Promote and fund public education campaigns about the risks of anti-abortion centers and their practices.
8. Enact Shield Laws to Provide Legal Protections for Patients and Providers

One in 10 people already traveled out of their home state for an abortion in 2020 before Roe was overturned, and interstate travel has likely increased significantly now that abortion care is unavailable in more than a dozen states. Doubling down on their coercive agenda, several national anti-abortion groups have publicized that they are drafting model legislation that would restrict people from traveling across state lines to obtain an abortion.

In response, legislators in states protective of abortion have enacted laws to help protect providers and patients. While these laws vary across states, they typically include the following provisions:

  • Prohibit state agencies from assisting in investigating, subpoenaing or extraditing an individual to a state where abortion is banned.
  • Ensure medical professionals do not face any punishment from licensing boards for providing abortion care that is legal in one state but banned in another.
  • Protect patient medical information and data from investigators in other states. Some measures extend these protections to patients who travel from a state where abortion is restricted in order to access care.

New York is a good example of a state that has implemented such protections. Governor Kathy Hochul signed several measures into law in 2022, including three that are meant to protect providers and patients from the effects of abortion bans in other states. One of the provisions protects abortion providers in New York from legal proceedings against them in other states by blocking law enforcement and judicial cooperation in their arrest and extradition.

Policymakers could improve shield laws by extending their protections to cover abortion funds and practical support organizations that assist patients who travel to another state for care. Enhancing protections around data privacy is also essential.

It is important to note that shield laws are untested legal territory, and it is unclear to what degree these measures can secure their intended safeguards. States where abortion is banned may still attempt to prosecute abortion providers in other states, patients who travel for abortion care or anyone who assists them. Nevertheless, enacting shield laws has a large symbolic power, as it signals that the state is invested in legally protecting providers’ livelihoods as well as patients’ bodily autonomy and access to critical health care.

Action Is Needed Beyond Protective State Measures

These eight categories of protective measures are essential to ensuring that as many people as possible have access to compassionate and affordable abortion care in their communities. This is not a comprehensive list and, more importantly, these measures are not a substitute for repealing abortion bans in effect in a growing number of states.

There are also critical actions that must be taken at the federal level, including enacting the following legislation:

Source URL: https://www.guttmacher.org/2023/01/eight-ways-state-policymakers-can-protect-and-expand-abortion-rights-and-access-2023