In the United States, state legislatures wield enormous power to control women’s access to abortion and other reproductive healthcare services. Each year, anti-choice state legislators propose measures intended to restrict women’s access to abortion, including mandatory delays, biased counseling provisions and other burdensome and unnecessary requirements. Hundreds of anti-choice bills are proposed annually and dozens of restrictive laws are passed, making it increasingly difficult for women in many states to access abortion.
2010 was one of the most challenging state legislative sessions for women’s access to abortion in many years. State legislatures considered and enacted some of the most extreme restrictions on abortion in recent memory, as well as passing laws creating many other significant new hurdles. At the same time, pro-choice legislators, advocates and governors continued to stand up for women’s health and rights and in most cases successfully defeated harmful legislation. In addition, legislators and advocates succeeded in enacting new laws designed to improve women’s health and access to some forms of reproductive health care.
The Center for Reproductive Rights works alongside advocates in many states to ensure that women’s access to critical healthcare is not burdened by restrictive legislation. As the 2011 legislative session begins, the Center presents this overview of 2010’s major legislation on reproductive health and rights to inform allies around the country about the landscape of reproductive rights law following last year’s sessions and to help them prepare to confront these and new challenges in 2011.
Major Trends in 2010
In 2010, as in the last several years, anti-choice proponents sought to enact dozens of “biased counseling” requirements, which compel physicians to provide patients with state-mandated information before a patient is permitted to obtain an abortion. Under such laws, physicians and other healthcare professionals are obligated to give women who seek abortions information that may not be medically accurate or that may be inappropriate for her circumstances (such as telling a rape victim that the father may be liable for child support). Providers may also be required to read a script designed to dissuade women from having abortions.
Many of the more recently passed laws have included requirements that healthcare providers perform ultrasounds and offer patients the option to view the ultrasound image and hear a fetal heartbeat, in some cases, these ultrasound mandates will be enforced alongside new or existing waiting period laws, which require patients to wait a specified period of time between receiving state-mandated information and being permitted to obtain an abortion.
Ultrasound requirements are particularly demeaning to women, implying both that they do not understand their pregnancies and that they cannot make reasoned decisions without receiving information the state deems important. Women seeking abortions have carefully considered their options and life circumstances, and these requirements serve only as an attempt to shame them and make them feel guilty about their decisions.
For women who have wanted pregnancies or who have been victims of rape, incest, or abuse, these requirements can result in unnecessary emotional suffering. These bills also interfere with the doctor/patient relationship, forcing physicians to give each woman “one size fits all” treatment, instead of allowing the physician to treat each patient individually according to his or her professional judgment.
This year, the debate over abortion in federal health care reform was a major impetus for aggressive efforts in the states to restrict abortion access. In March, Congress passed and the President signed the Patient Protection and Affordable Care Act (PPACA), which requires the establishment of state insurance exchanges by 2014. A provision commonly referred to as the “Nelson Amendment” after its sponsor, Sen. Ben Nelson (D-Neb.), restricts the means by which insurers can offer insurance coverage for abortion within the state exchanges, and also explicitly declares that states can ban abortion coverage in state exchanges altogether.
During the Congressional fight over abortion in the PPACA, two significant and troubling issues emerged. First, opponents’ claim that abortion is not an essential and fundamental part of access to comprehensive health care further threatens to stigmatize and burden the right to an abortion. Yet access to abortion is essential to women’s ability to protect their health and well-being. Health organizations including the World Health Organization, the American College of Obstetricians and Gynecologists, the American Public Health Association, and the Association of Reproductive Health Professionals recognize abortion as a critical part of comprehensive reproductive health care. It is also an extraordinarily common procedure: By the age of forty-five, approximately one in three women in this country will have had an abortion. Anti-abortion activists and legislators ignored these facts, and instead used the healthcare reform process to further restrict access to abortion.
Second, the Nelson Amendment explicitly invited anti-choice legislators to act by emphasizing in law that states could prohibit abortion coverage in the state-based exchanges created by the reform.
While passage of the PPACA occurred relatively late in the 2010 state legislative season, reaction in the states was immediate. Although many legislatures were nearing the end of their sessions and had passed important bill-filing deadlines, ten states immediately began to consider bills banning or limiting insurance coverage for abortion in the not-yet-created state exchanges.
Moreover, while the Nelson Amendment (and other federal restrictions on abortion) contains exceptions for abortions sought by victims of rape and incest or in situations where the life of the woman is threatened, several states considered bans on coverage even more restrictive than federal law, sometimes banning coverage altogether. By the end of the year, five states had enacted “exchange bans” (Arizona, Louisiana, Mississippi, Missouri, and Tennessee) and bills containing such bans passed in the legislatures in Florida and Oklahoma before being vetoed by those states’ governors.
The language of these bills varied. Some banned insurance coverage for abortion with no exceptions at all, while others incorporated exceptions such as health, life, rape and incest. A bill in Louisiana initially included a ban on abortion coverage in all insurance plans in the state, both inside and outside of its exchange. The bills considered in 2010 were no doubt just a preview of what the 2011 legislative session will bring.
Ballot Initiatives in 2010-2011: Personhood and Parental Notice
Although most restrictions on women’s access to abortion are enacted in state legislatures, some anti-abortion activists to resort to state ballot initiatives, often to push an extreme or unconstitutional agenda that would likely fail if proposed in the legislature. Unlike a law that is passed by the legislature, a ballot measure requires that supporters collect a sufficient number of supporting signatures and, once on the ballot, these measures typically require approval by a majority of voters in the next election. In 2010, one ballot measure aimed at restricting reproductive rights was passed in August and another failed in November.
In August, Alaska voters approved a measure requiring that before a young woman can have an abortion her physician must give notice to one of her parents at least 48 hours before the procedure. Even for a young woman in an abusive home, the only way to avoid this notification is to seek a court order or to get a signed, notarized statement from a law enforcement officer or one of a small qualifying group of family members attesting to personal knowledge of the abuse. This new law’s mandate of parental notification interferes with families and places the most vulnerable young women in even more danger, at risk of violence or of endangering their health through delay. The law also contains some of the most burdensome notification requirements in the country. For those reasons, the Center for Reproductive Rights, the ACLU and Planned Parenthood have come together to bring a lawsuit against the State of Alaska, arguing that the law violates the constitutional rights of Alaskan minors who seek abortion care, as well as the constitutional rights of Alaskan physicians. The lawsuit was filed in November 2010, and on December 14th, the court issued a partial injunction, preventing some of the most onerous parts of the law from going into effect while the case is litigated.
This year also saw a rise in so-called “personhood” ballot measures. These proposals seek to amend state constitutions to recognize life from the moment of conception and to endow fertilized eggs, zygotes and fetuses with the status of a “person” under the law. Not only would such measures unconstitutionally ban abortion, they would also ban many forms of birth control and could result in the end of assisted reproductive technology, such as in-vitro fertilization (IVF). Furthermore, such measures would have unintended and unpredictable impacts on thousands of state laws that use the word “person.”
At the start of 2010, “personhood” ballot initiative campaigns had begun to take shape in at least nine states. However, only two proposals received enough signatures to get on the ballot, one in Colorado this year and another to be placed on the ballot in Mississippi in 2011. In 2008, Colorado was the first state to consider a personhood initiative and voters overwhelmingly rejected it, 73 percent to 27 percent – and when voters in Colorado went to the polls this November, the proposal was once again defeated by an almost identical margin.
State by State: Major Restrictions on Women’s Access to Abortion
In 2010, Arizona enacted a law (SB 1305) prohibiting any public entity from using public funds to pay for any abortion except where the abortion is necessary to save the woman’s life or avert a serious threat to her health, or in cases of rape or incest. The ban applies to all public employees, as well as any other recipient of public funding. In addition, the law prohibits insurers participating in the state exchange from covering abortion. The exchange ban contains the same life and limited health exceptions as the public entity ban, but does not contain exceptions for victims of rape or incest. Taken together, the impact of this law will be to reduce access to reproductive healthcare for Arizona women across all income levels.
Arizona also enacted a law (SB 1304) imposing requirements on health care providers to report each abortion they perform, as well as information about each patient, including her number of past pregnancies and abortions and her reasons for seeking an abortion. Violations of this law could result in criminal fines or even imprisonment.
Idaho also took steps this year to reduce access to a range of reproductive healthcare services by passing a law (SB 1353) allowing healthcare professionals to refuse to provide or assist in abortion care, stem cell research or end of life treatment, if the care violates his or her “conscience.” Health professionals must provide care only in life-threatening situations if no other healthcare provider is available.
Although many states have refusal laws, Idaho’s is particularly troubling because it wrongly defines “abortifacient” to include emergency contraception, a form of birth control that acts to prevent a pregnancy from occurring, but which does not terminate an existing pregnancy. Because emergency contraception and other hormonal forms of contraception prevent pregnancy in the same way, SB 1353 blurs the line between abortion and contraception, allowing healthcare professionals to refuse to dispense or even provide information about contraceptives.
Louisiana moved aggressively in 2010 to restrict women’s access to abortion, both by imposing new requirements on abortion patients and by targeting abortion providers by making it more difficult for them to provide services.
First, Louisiana enacted a bill (HB 1370) expanding the power of the Department of Health to permanently close abortion clinics for any violation of the state’s regulatory code, making it much easier to close down an abortion facility than it is to close other types of facilities. Moreover, if the department closes a clinic, the law now prohibits any owner or manager of that clinic from ever opening or managing an abortion clinic in the state in the future. In September, the Department of Health took steps to close one of Louisiana’s oldest abortion clinics. In response, the Center filed suit, challenging the new law and the Department’s arbitrary and capricious enforcement of the regulations governing abortion clinics.
Through a second law (HB 1453), the legislature denied physicians who provide abortions access to the state’s Patient Compensation Fund (PCF), established to protect healthcare providers from prohibitive costs associated with malpractice. The PCF allows healthcare providers to participate in a program that conducts initial screening of all malpractice claims and limits physicians’ malpractice liability. The new law prevents physicians who perform most abortions from receiving PCF coverage for claims related to those procedures. The exclusion of abortion service providers from the PCF demonstrates the legislature’s desire to make the practice of abortion care too expensive for providers, thereby discouraging them from continuing to offer these services. This law is now being challenged by the Center in federal court.
After enactment of federal healthcare reform, Louisiana also attacked women’s ability to access abortion by passing HB 1247, which will prohibit insurers from offering any coverage for abortion services in the federally-mandated state exchanges. Under this extreme law, insurers cannot offer coverage even for abortions necessary to save a woman’s life.
Finally, Louisiana enacted a new ultrasound requirement (SB 528) that requires any woman seeking an abortion to have an ultrasound and health care providers to offer woman an opportunity to view the ultrasound image and hear an explanation of the image, and be offered a copy of the ultrasound print. Further, the law compels providers to mislead each patient into believing that the mandated ultrasound is necessary to preserve her health and to determine whether the fetus is viable, even though it is not necessary for either purpose.
As soon as the PPACA was enacted, legislators in Mississippi responded by passing a bill (SB 3214) that bars any insurer from offering coverage for abortion in the state exchange, except when the woman’s life is endangered by “a physical disorder, physical illness or physical injury” or in cases of rape or incest. The legislature was so eager to pass this bill that it circumvented its own bill introduction deadlines and procedural rules to do so.
This year, Missouri legislators enacted a comprehensive biased counseling law containing a myriad of new restrictions on both abortion patients and providers (SB 793). The most onerous new requirements include a “two trip” provision, requiring women to visit abortion facilities in person at least twenty-four hours before they are permitted to obtain an abortion, a requirement that abortion patients be given a large packet of information compiled and mandated by the state, and a requirement that abortion patients be offered the opportunity to see an ultrasound image and hear the fetal heart-tone. The state-created materials will contain this statement: “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.” Finally, the law includes a complete prohibition on insurance coverage for “elective abortions” in the state exchange.
This year, Nebraska enacted two of the most extreme abortion restrictions to be passed in the last twenty years. The first bill (LB 1103), which took effect in October, bans abortions at twenty-weeks gestation (i.e., before viability), with only limited exceptions for situations in which an abortion would be necessary to either save a woman’s life or to prevent the risk of substantial and irreversible physical impairment of a major bodily function. The law excludes mental health from its narrow exceptions, and contains a special clause prohibiting physicians from performing an abortion even if the physician believes there is a risk the woman may commit suicide. Notably, the law prohibits abortions for fetal anomalies, or in cases of rape or incest, and subjects providers to imprisonment for violations.
In addition, the state also enacted an abortion “patient screening” bill (LB 594) with provisions so complex, confusing and vague that it would have been impossible for providers to comply. Among other onerous, bizarre requirements, the law would have forced abortion providers to review virtually all of the peer-reviewed studies ever published, and to create a list of all of the risk factors ever identified as having a statistical association with complications from abortion. The doctor would then have to counsel each patient about each of these risks, regardless of whether they were relevant to the particular patient or grounded in sound medicine. The law also gave patients the right to sue the physician for having failed to counsel about any potential risk factor, with the possibility of a $10,000 fine for each risk factor missed.
Planned Parenthood of the Heartland challenged the law in federal court. After the court granted a preliminary injunction against the law and the state of Nebraska announced that it did not intend to continue to defend it, the court approved the parties’ agreement to make the injunction permanent.
Over the last few years, Oklahoma has taken some of the most aggressive steps of any state to restrict or burden women’s access to abortion and other reproductive health care. In 2008 and 2009, the state enacted laws containing many provisions that would have restricted access to abortion. The Center filed two lawsuits challenging the laws and succeeded in having them struck down based on a provision of the Oklahoma Constitution that prohibits the legislature from enacting laws that address more than one subject. Despite those victories, the Oklahoma legislature came back in 2010 determined to pass each of the restrictions as a separate bill. It enacted seven of them into law, including three over gubernatorial vetoes.
One of the most onerous new laws (HB 2780) requires abortion providers to perform ultrasounds on all patients and to display the ultrasound to each woman while simultaneously providing a detailed verbal description of the image. Leaving nothing to physician discretion, the law requires the physician or a “certified [ultrasound] technician” to describe specific aspects of the fetus, including its “members and internal organs.”
Aside from serious medical emergencies, there are no exceptions to this law—only the slight caveat that the woman will not be punished if she averts her eyes from the screen. Although Oklahoma Governor Henry vetoed this bill, finding it to be an unconstitutional invasion of women’s privacy, the Oklahoma legislature overrode that veto. The Center immediately challenged the law on behalf of abortion providers and their patients, and on July 19, 2010, a state judge issued a preliminary injunction, enjoining the law while the case is pending. The Oklahoma legislature also enacted a reporting law (HB 3284) containing some of the most complex and burdensome requirements ever proposed in this country. The law requires physicians to walk through thirty-seven questions with each patient, asking about her life circumstances and the reasons she is choosing to terminate her pregnancy, and then requires the physicians to provide this information to the state. As with the ultrasound law, the legislature enacted this law over Governor Henry’s veto. Most provisions of the Act will not be operative until April 2012.
In a third attack on women’s access to reproductive healthcare, the legislature enacted, again over the Governor’s veto, a law that prohibits any tort claims for damages on the basis of “wrongful life” or “wrongful birth.” The law essentially gives physicians and other medical professionals permission to lie to or intentionally mislead pregnant patients, including concealing information about fetal anomalies, withholding vital medical information, and failing to perform available tests, without fear of legal consequences. The three laws described above are the most extreme enacted in Oklahoma this year, and are some of the most extreme enacted across the country. But Oklahoma went even further, enacting four additional laws that impose other new requirements on abortion patients and providers.
First, the state passed a broad refusal law (SB 1891), permitting employees of healthcare facilities to refuse to provide abortions, along with several other types of healthcare services, and permitting healthcare facilities themselves to refuse to admit patients requiring such care.
Next, the state enacted a law (SB 1902) requiring that in order to provide a non-surgical, medication abortion, the physician must be present in the room when the patient takes the first medication required for the procedure. This law seeks to preclude abortion providers from practicing telemedicine, which is becoming more common and enables providers to treat patients in rural areas or that otherwise have difficulty accessing healthcare.
Third, the state passed a law (SB 1890) prohibiting physicians from providing abortions sought solely on the basis of the gender of the fetus (except where there is a genetic anomaly linked to gender). Finally, the state enacted a law (HB 3075), requiring all facilities that provide abortions to post large, detailed and conspicuous signs in each patient waiting room or treatment room informing patients, among other things, that the facility is prohibited from coercing patients into having abortions.
This year, South Carolina enacted a law (HB 3245) requiring patients to access state-mandated biased counseling materials at least twenty-four hours before they are permitted to obtain abortions. While some patients will be able to access these materials on the internet, others may have to come to the clinic twice, go to their county department of health, or arrange to have the materials sent to them in the mail, potentially delaying their appointments even more than twenty-four hours and compromising their ability to keep their abortion confidential.
Tennessee enacted two restrictive laws this year. The first law (SB 3812) requires any facilities that perform abortions to post a very large sign in each patient waiting or consultation room stating that it is unlawful to coerce a woman into having an abortion.
Second, shortly after the enactment of the PPACA, Tennessee’s legislature passed one of the first exchange bans (SB 2681). The law prohibits insurers from covering abortion through the state exchange under any circumstances – there are no exceptions and no provisions permitting women to buy additional insurance coverage for abortion.
This year, Utah enacted two laws impacting women’s reproductive health and rights. The first law (HB 462) imposes severe criminal penalties on pregnant women who cause the termination of their own pregnancies. The law impacts pregnant women in significant and unintended ways, subjecting women who experience miscarriages to potential criminal prosecution and inflicting criminal penalties on women who are already suffering such anguishing life circumstances that they would undertake desperate and dangerous measures to end their pregnancies.
The second law (HB 200) requires abortion providers who perform ultrasounds to display the ultrasound image to each patient, although she can choose not to look at it, and also to offer her an opportunity to hear a detailed explanation of the image. The law also requires providers to give patients additional information about the state-mandated counseling materials. This law creates yet another in the series of steps that must be performed by patient and doctor before a woman is permitted to obtain an abortion.
Reproductive Health and Rights Victories in 2010
This year, lawmakers and advocates successfully defeated many of the harmful bills that would have restricted women’s access to reproductive health care. In addition, legislators and advocates advanced new laws that will increase access to reproductive healthcare and protect reproductive rights. Here are the highlights of those legislative victories:
Pregnant Women’s Health and Rights
In 2010, several states passed laws that will improve or expand access to health care or social services for pregnant women, and in particular for low-income pregnant women. Washington enacted a law directing its department of social and health services to target funding for maternity support services towards pregnant women who may disproportionately experience poor birth outcomes (HB 2956). New Hampshire established a panel that will conduct a comprehensive, multidisciplinary review of maternal mortality in the state, identify factors associated with maternal mortality, and develop recommendations for improving health care services for women (HB 1553). Two states, Mississippi and Colorado, created nurse home visitor programs designed to improve the health and well-being of low-income, first-time pregnant women and their children (HB 1067, SB 73). A recent study found that these types of programs can improve outcomes for women and their infants, particularly by helping low-income women and teens in rural areas space their pregnancies.
In addition, Oklahoma amended its employment discrimination law so that women can no longer be discriminated against on the basis of pregnancy, childbirth or related conditions (SB 1814).
Shackling of pregnant incarcerated women during labor and delivery, as well as during transport to and from medical facilities, is a common practice in many jurisdictions in the United States. This practice is cruel and degrading, inflicting pain and humiliation on pregnant women. It persists in state and local jails and prisons, as well as facilities where immigrants are detained, even though the federal Bureau of Prisons prohibits it and two major American medical organizations, as well as countless human rights advocates and others, have called for an end to the practice.
This practice is a clear violation of human rights: The United Nations body of human rights experts that monitors compliance with the International Covenant on Civil and Political Rights, a human rights treaty to which the US is a party, has expressed concern about the shackling of pregnant incarcerated women and urged the US to prohibit the practice. In addition, the U.N.’s Special Rapporteur on Violence Against Women has concluded that this use of restraints on pregnant women violates international human rights standards and “may be said to constitute cruel and unusual practices.”
Over the past several years, five states have enacted laws prohibiting or greatly limiting this egregious practice: Illinois, Vermont, New Mexico, Texas, and New York. In 2010, four more states have joined that list: West Virginia (HB 4531), Colorado (SB 193), Pennsylvania (SB 1074), and Washington (HB 2747). All four of these new laws contain exceptions for prisoners who pose a significant flight risk or other significant security concerns. The Colorado, Pennsylvania, and Washington laws prohibit shackling not only in state-run correctional facilities, but also in private contract jails and immigrant detention centers.
California’s legislature also passed a bill banning shackling (AB 1900), but it was vetoed by the governor. Similar legislation was proposed but not enacted in five other states: Arizona, Idaho, Massachusetts, Mississippi, and Rhode Island.
Crisis Pregnancy Center Regulation
Crisis pregnancy centers (CPCs) are non-medical facilities that offer services such as counseling, free pregnancy tests, or free ultrasounds, intending to lure women seeking such services to their centers so that they can counsel them against accessing abortion or birth control services elsewhere. In 2009 and 2010, three localities—Baltimore, Maryland, Montgomery county, Maryland, and Austin, Texas—passed ordinances requiring these types of facilities to post signs designed to dispel consumer confusion and prevent consumer deception. Similar legislation was proposed in Virginia and Michigan, and a similar ordinance is currently pending before the New York City Council.
Insurance Coverage for Contraception
Two states—Colorado and Virginia—passed laws this year to improve insurance coverage of contraception. Colorado’s law requires individual and group insurance policies to provide coverage for contraception (HB 1021). Virginia’s law will prohibit insurance companies from denying coverage of contraception (HB 1375). These types of laws helps alleviate the financial burden on women paying for contraception, who typically spend 68 percent more in out-of-pocket costs for health care than men.
Other Legislative Victories
California passed a resolution (AJR 32) urging the U.S. Senate to ratify, and the President to sign, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the only comprehensive international treaty guaranteeing women’s human rights and the prevention of discrimination against women. Many other state and local governments have passed similar resolutions. The U.S. is one of the few industrialized countries that have not yet ratified CEDAW.
Virginia passed a law (SB 18) authorizing the issuance of special license plates bearing the slogan “Trust Women, Respect Choice,” becoming the fourth state to offer a pro-choice license plate for its drivers.
The Center for Reproductive Rights works closely with state-based pro-choice advocates to help defeat bills that would reduce or restrict women’s access to reproductive healthcare. The Center also helps advocates put forward proactive legislation to increase access to essential reproductive healthcare. If your state is considering a law that would make it harder for women or girls to access reproductive healthcare and you would like to get involved in fighting back, or if you have a proactive piece of legislation you would like assistance with, please contact Jordan Goldberg, State Advocacy Counsel, at [email protected]. For press inquiries, please contact Dionne Scott, at [email protected].