I. Introduction

So far in 2004, we have witnessed a moderate level of activity in the 50 state legislatures pertaining to reproductive rights. As in past years, both pro-choice and anti-choice measures have been introduced; however, as compared with the 2003 legislative session, this year has been quieter. Fewer reproductive rights bills were introduced this year, and once introduced, those bills were less likely to pass out of their house of origin (or if they did, they often failed to pass out of the second house or were vetoed by the governor). This resulted in a notable decline in passage of both pro-choice and anti-choice measures in 2004.

We believe several factors have contributed to this decline in activity. The first is the nature of the legislative cycle. For example, six states (AR, MT, ND, NV, OR, TX) did not hold a regular legislative session this year, so there was no activity pertaining to reproductive rights legislation in these states. In addition, 25 of the 44 states that were in session carried bills over from the 2003 session, so legislators focused on 2003 bills in many instances, rather than introducing new measures, thereby decreasing the numbers of new measures this year. A second factor was the visible increase in discord within the anti-choice faction. This conflict led to the demise of a few particularly harmful bills (such as a mandatory delay bill in Idaho and an anti-choice constitutional amendment in Tennessee) and has undoubtedly contributed to the stagnant nature of many other bills. A third factor is the anti-choice movement’s new focus on voter initiatives. Anti-choice groups introduced voter initiatives or ballot measures aimed at restricting access to abortion in several states. One such citizen initiative in Michigan resulted in the enactment of the "Legal Birth Definition Act" – a law that had been vetoed by the governor in the previous legislative session. ¹ In Florida, a state constitutional amendment requiring parental notification for abortions is scheduled to be on the November ballot, in an attempt to override a contrary decision by the Florida Supreme Court protecting minors’ access to abortions. These measures are indicative of a trend away from the state legislatures as the sole arena to enact restrictive measures.

Below we provide details on the progress of this session’s legislation, highlighting those bills that reflect these recent trends.

II. Bills Restricting Reproductive Rights

Abortion Bans: At the mid-year mark, there have been at least 10 bills introduced that ban all or a significant number of pre-viability abortions. These bills take many forms. Some legislation would ban so-called "partial-birth abortion" procedures using broad definitions of "partial-birth abortion" to ban all abortions or all those after 12 weeks in pregnancy. Other bills would ban abortions at particular stages of pregnancy; and some would simply ban all abortions (either through an outright ban, or through language that would redefine a pre-viable fetus in the process of an abortion as a "person").

These bills have had mixed success so far this year. Utah enacted a so-called "partial-birth abortion" bill – however, the law has been temporarily blocked by the courts in a suit brought by the Center for Reproductive Rights. Another bill, the "Legal Birth Definition Act," which redefines a fetus in the process of an abortion as a "person" and effectively bans abortion, was enacted in Michigan through citizen initiative -- after being vetoed by the governor during the 2003 session. (This bill will be challenged before its effective date). On the more positive side, a bill in South Dakota that would have banned all abortions (with limited exceptions) was vetoed by the conservative governor on technical grounds. A Mississippi bill that would have banned abortions after the first trimester (with limited exceptions) died early in the process. And a Tennessee constitutional amendment -- which would have paved the way for an abortion ban if Roe v. Wade is overturned -- was pulled by its sponsor after being amended by more moderate anti-choice legislators.

Mandatory Delays and Biased Counseling: In 2004, approximately 20 new bills were introduced that would require a mandatory delay and biased counseling before an abortion, and several other similar bills carried over from the 2003 session. These bills aim to deter a woman from obtaining an abortion by requiring her to wait an unnecessary amount of time before obtaining the abortion, and/or by forcing her to receive biased anti-choice information. Twenty-seven states have these laws on the books; twenty-one of these laws are currently enforced. These bills had mixed success this year. For example, one bill in Idaho died because of in-fighting between anti-choice groups. Another Arizona bill was vetoed by the governor. A third bill, which carried over from the 2003 session, was recently signed by the governor of Alaska and will become effective in October 2004 unless challenged in court.

Four of the mandatory delay/biased counseling bills introduced this year (and over 10 that were carried over from last year) direct medical providers to provide information on the link between abortions and breast cancer. This is shocking, considering that definitive medical studies and leading medical organizations have discounted any connection between abortions and breast cancer. Rather than providing women with helpful medical information, these bills are intended to scare women away from choosing abortion.

In recognition of the lack of evidence of the link, and subsequent to passage of a 2003 law in Minnesota requiring doctors to discuss the abortion/breast cancer link when medically accurate, in April 2004 the Minnesota Health Department published a retraction on their website, recognizing that there was conclusive evidence demonstrating no link between abortion and breast cancer.

Minors’ Access: Another alarming trend that continues is the encroachment on adolescent’s reproductive rights. Forty-four states have parental involvement laws on the books, requiring a young woman seeking an abortion to notify or obtain the written consent of one or both of her parents prior to the procedure, or to obtain a judicial bypass from the courts. Thirty-four of these laws are currently being enforced. These laws effectively deny young women access to the full range of reproductive options. In 2004, more than 25 bills were introduced that would restrict a minor’s access to reproductive health care. These bills include new requirements for parental notice or for parental consent, as well as changing existing notice requirements to consent requirements, and amending the bypass procedures or requirements to limit the options of young women in the courts. Some of the other bills introduced this session require forced parental involvement for STD testing and contraceptive use, or bar individuals from crossing state lines with a minor to obtain an abortion in a neighboring state. Only three of these bills were successful in passing though their house of origin. One carryover bill in Michigan, which would make the current parental involvement law more severe, was vetoed by the governor. Another bill, which eliminates the requirement that schools inform students about the judicial bypass option, was enacted in Nebraska. A third bill – a constitutional amendment in Florida -- successfully passed through the legislature and will be on the ballot in November 2004. If enacted, the measure would amend the privacy provisions of the Florida Constitution to require parental involvement in abortion decisions (thereby overruling a Florida Supreme Court decision striking down Florida’s parental involvement law in a case brought by the Center for Reproductive Rights).

Targeted Regulation of Abortion Providers (TRAP): TRAP bills are attempts to regulate the medical practices or facilities of doctors who provide abortions by imposing burdensome requirements that are different and more stringent than regulations applied to comparable medical practices. TRAP bills serve the anti-choice goal of making abortions more expensive and increasingly difficult to obtain. So far this session, over 30 TRAP bills have been introduced (including bills establishing comprehensive licensing and regulation schemes, requiring that abortions be performed at hospitals or ambulatory surgical centers, instituting burdensome reporting requirements, requiring compliance with physical plant specifications, and so forth). Several of these bills have been successful – for example, Mississippi enacted a requirement that all abortions after the first trimester must be performed at ambulatory surgical centers or hospitals. (This law was recently enjoined in a case brought by the Center for Reproductive Rights). Additionally, Ohio enacted a law regulating the dispensing of mifepristone.

Fetal Protections: In 2003, we saw a marked increase in the number of bills dealing with fetal protections, primarily taking the form of fetal homicide bills. This topic gained significant press attention as a result of the Laci Peterson murder and the Bush administration’s support for the Unborn Victims of Violence Act (UVVA) on the federal level. The trend continued throughout 2004, with Kentucky, Mississippi and Virginia enacting new fetal homicide laws. Additionally, other fetal protection measures were introduced, such as bills that would grant fetuses the right to due process and equal protection or would establish a process for obtaining an abortion that would assign a guardian ad litem to the represent the interests of a fetus. These legal protections directly challenge and undermine a woman’s legal rights. None of these other bills have been successful so far.

License Plates: Another trend in the past few years has been the creation of specialty "Choose Life" license plates in various states. These bills channel funds raised from the "choose life" plates to non-profit, anti-abortion organizations, including so-called "crisis pregnancy centers" (i.e., agencies that promise comprehensive medical advice and pregnancy services but deliver anti-abortion propaganda instead). Prior to this legislative session, nine states had enacted "Choose Life" license plate laws; so far this session, over 10 bills have been introduced and only one (Georgia) has passed through two houses, but none have been enacted.

Public Funding: In 2004, several states have introduced bills that would restrict the use of public funds for reproductive health services. Several of these bills specifically target abortion services, prohibiting state funds from being used for abortion or prohibiting agencies that perform abortions from receiving any state funding for their other services. For example, as part of an appropriations measure, a bill was enacted in Utah that prohibits state funds from being used to pay or reimburse, directly or indirectly, any person or agency for the performance of an abortion (with certain limited exceptions). Because of the public outcry over the inability of a woman carrying a fetus with a fatal anomaly to obtain an abortion at the state-run University of Utah hospital, the Utah Department of Health has enacted temporary regulations creating additional exceptions to this policy.

Quick Summary of Anti-Choice Measures: Bans: Utah partial birth abortion law enacted; blocked by courts Michigan "legal birth definition act" enacted through citizen initiative; not yet in effect South Dakota bill died after governor issued "style and form" veto on technical grounds Mandatory delay: Alaska law enacted; not yet in effect Arizona bill vetoed by governor Minors: Nebraska law eliminating bypass informational requirements enacted Florida constitutional amendment will be on the ballot in November Michigan carryover bill vetoed by governor TRAP: Mississippi law enacted; blocked by courts Ohio law enacted; not yet in effect Fetal homicide: Kentucky law enacted Mississippi law enacted Virginia law enacted Funding: Utah law enacted; department regulations have mitigated impact on women carrying fetuses with fatal anomalies.

III. Bills Ensuring Reproductive Choice for Women

Contraceptive Equity: Many health insurance plans that provide coverage for prescriptive drugs and devices do not provide coverage for contraceptives. The extent of this discrimination became clear a few years ago when many of these insurance companies opted to cover male impotence drugs like Viagra, but did not cover contraceptives. Recognizing this discriminatory practice, state legislatures began redressing this situation, introducing contraceptive equity bills in numerous state legislatures. Prior to this session, 21 states had successfully enacted laws mandating that insurance plans that provide coverage for prescription drugs and devices also provide coverage for contraceptives. So far this session, about 15 contraceptive equity bills have been introduced. Only one has passed its house of origin and none have been enacted.

Emergency Contraception: Yet another category of legislation that we actively monitor are bills that deal with emergency contraception ("EC"), also known as the "morning-after" pill. There are three main types of EC bills: 1) "EC education" bills, which create public education campaigns to increase awareness about EC and encourage health providers to tell their patients about EC; 2) bills that attempt to increase access to EC by creating collaborative practice agreements between physicians and pharmacists, or by enabling mid-level practitioners to dispense EC; and 3) "EC in the ER" bills that require that EC be provided to sexual assault victims in hospital emergency rooms.

In 2004 thus far, there were approximately 5 EC education bills introduced, approximately 6 collaborative practice/mid-level bills introduced and approximately 9 EC in the ER bills introduced. Additional bills carried over from last year’s session. Of these, only one bill, a collaborative practice bill which carried over in Maine from the 2003 session, was successfully enacted. Another collaborative practice bill in New Hampshire was vetoed by the governor this year.

Access to Reproductive Health Care: Bills were introduced or carried over in 5 states (Illinois, Massachusetts, New York, Rhode Island and Wisconsin) this year that would protect physical access to reproductive health facilities, permitting women to access reproductive health care without the mental and physical intimidation of anti-choice activists. Most of these bills create "buffer zones" or "bubbles" around patients entering abortion clinics; bills in Massachusetts and New York also prohibited the photographing of clinic patients entering or leaving abortion facilities. So far, none of these bills have yet been enacted.

Quick Summary of Pro-Choice Measures: EC: Maine collaborative practice bill enacted New Hampshire collaborative practice bill vetoed

Endnotes

1. Under Michigan’s unusual citizen initiative process, once a requisite number of citizen signatures are obtained, the legislature can enact a bill with a simple majority vote, and the bill does not go to the governor for approval.