States active again on reproductive health
By Adam Sonfield
Senior Public Policy Associate
As of this writing, in mid-May, policymaking at the federal level was at a standstill, with lawmakers waiting on two major events: the Supreme Court's June decision on the Affordable Care Act and the November national elections. So, for this month's column, we'll turn our attention to the state level, where policymakers are having another busy year.
In four and a half months, state legislators have introduced just more than 1,000 provisions related to reproductive health and rights; 139 of these provisions have been approved by at least one legislative chamber, and 59 have been enacted.1-3 That trails behind the record-shattering pace of 2011, during which 135 provisions were enacted in 36 states, but it still is considerably more active than usual for an election year.4
As was the case in 2011, abortion restrictions have been state lawmakers' primary focus, following a conservative swing in many state houses and governors' offices as a result of the 2010 election. The restriction that perhaps received the most national attention was a new Virginia requirement that a woman undergo an ultrasound prior to obtaining an abortion. The final version does not explicitly require providers to perform a transvaginal ultrasound — the detail that sparked a public outcry — but doing so is likely the only way to achieve the necessary level of clarity to determine gestational age for first-trimester abortions. Seven other states have similar laws, including Texas, whose law was upheld by a U.S. District Court in February.
Also in the abortion realm, Oklahoma and Wisconsin enacted laws prohibiting a physician from prescribing medication for abortion remotely through telemedicine. This recent practice has the potential to address the shortage of abortion providers in many rural communities. Five other states already have telemedicine abortion bans. A bill introduced in Congress by Rep. Steve King (R-IA) echoes the state laws: It would ban telemedicine abortions across state lines and prohibit federal telemedicine funds from going toward abortion. Meanwhile, a new law in Arizona attacks medication abortion from another angle. It bars the use of newer regimens for administering the drugs that are as safe and effective as the original regimen approved by the Food and Drug Administration, but that have fewer side effects and lower cost. A similar Oklahoma law was struck down in May by a state court.
A third major front on abortion has been laws to restrict abortion later in pregnancy, but prior to fetal viability. That same new Arizona law mentioned earlier includes a provision that bans abortion at 18 weeks postfertilization (or 20 weeks after the woman's last menstrual period), with limited exceptions. A similar law passed in Georgia places the limit at 20 weeks postfertilization. Six other states, starting with Nebraska in 2010, have enacted previability restrictions, despite their clear conflict with prior Supreme Court rulings. A similar bill that would regulate abortions in the District of Columbia has been introduced in Congress by Rep. Trent Franks (R-AZ). Proponents of these measures assert spuriously that a fetus can feel pain that early in gestation.
How about other issues?
State lawmakers also have turned their attention in 2012 to family planning and sex education issues. A new Arizona law, for example, substantially expands the range of religiously affiliated employers that are exempt from the state's requirement that insurance plans cover contraception.
Prior law had exempted, essentially, only churches and church associations, but now a hospital, school, charity, or other group may be exempt if they have incorporating documents that clearly state that religious beliefs are central to the organization's operating principles. The new law, and bills proposed in several other states, build off of controversy earlier this year around a new federal contraceptive coverage requirement.
On a positive note, Indiana and Vermont passed new laws this year requiring the states to extend Medicaid eligibility for family planning services to individuals not otherwise eligible for Medicaid. These laws take advantage of new authority granted to states by the Affordable Care Act. The Indiana law, unfortunately, specifies that "a drug or device intended to terminate fertilization" would not be covered, which is provision that could prevent the program from providing hormonal contraceptives and intrauterine devices. Texas, meanwhile, is embroiled in an effort to exclude any provider that is affiliated with an entity that performs abortions from its family planning expansion. This effort has led the federal government to phase out its funding and is being challenged in the courts.
Finally, states have taken disparate steps on sex education in 2012. Oregon enacted a measure strengthening its sex education requirements by requiring that students receive education on teen dating violence. By contrast, Wisconsin passed a law that repeals requirements to provide contraception education and weakens the requirement that instruction be medically accurate, while heightening the focus on abstinence education. Tennessee enacted a law strengthening the state's requirement that sex education promote abstinence. A measure was vetoed in Utah that would have prohibited school-based sex education from including information on contraceptive use, sex outside of marriage, or homosexuality.
- Guttmacher Institute. Laws affecting reproductive health and rights: trends in the first quarter of 2012. Accessed at http://bit.ly/I6t4w8.
- Guttmacher Institute. Monthly state update: major developments in 2012, as of May 1, 2012. Accessed at http://bit.ly/b1EyCR.
- Guttmacher Institute. Unpublished data.
- Guttmacher Institute. Laws affecting reproductive health and rights: 2011 state policy review. Accessed at http://bit.ly/xO2Vz6.