Abortion, Contraception, and Sex Ed in the States in 2008

Social issues, including those related to reproductive health and rights, were not the top priority in 2008 for state legislators, who mostly spent the year grappling with budget crises and infrastructure issues even as they sought to shorten their sessions so they could hit the campaign trail in advance of the November elections. Nevertheless, 1,001 measures relating to reproductive health and rights were introduced in 44 states and the District of Columbia over the course of the year, and 33 new laws were enacted in 20 states. (Six state legislatures did not meet in 2008.) 

While none of the 17 new abortion-related laws expand access to services, a few states took significant steps to promote reproductive health by requiring hospitals to provide information on emergency contraception to women who have been sexually assaulted, laying the groundwork for expanding Medicaid family planning coverage and mandating insurance coverage of the human papillomavirus (HPV) vaccine. 

Meanwhile, voters in three states cast ballots on abortion-related ballot initiatives in November, all of which failed. The initiatives defeated in Colorado and South Dakota would have banned abortion, the former by establishing personhood at conception and the latter by banning abortion except in cases of life endangerment, rape, incest or when the woman's physical health is extremely endangered. The measure defeated in California would have required notification of a parent before a minor obtains an abortion; this was the third time in four years that a parental notification proposal was rejected by voters. 

Abortion 

Over the course of the year, nine states enacted new provisions, amended current law or continued funding requirements related to abortion. Among the new laws is an omnibus measure in Oklahoma -enacted over Gov. Brad Henry's (D) veto - that includes seven separate provisions.

• Four states imposed ultrasound requirements on abortion providers, bringing the total number of states with these provisions to 16. Oklahoma's new omnibus law requires all abortion providers to have ultrasound equipment on-site and to perform an ultrasound on every woman obtaining an abortion.  The provider is also required to verbally describe the image to the woman and position the monitor so she is able to see it, although the law explicitly permits the woman to avert her eyes if she desires. (This law is not in effect pending the outcome of a legal challenge.)  In Ohio and South Carolina, new laws require that the woman be offered the option to view an ultrasound image if the provider performs the test in preparation for the abortion. In South Dakota, the woman must be offered the option of undergoing an ultrasound. (See Requirements for Ultrasound.)

• Two states enacted laws that purport to address the issues of coerced abortion. The omnibus Oklahoma measure requires abortion providers to post notices informing women that coerced abortion is illegal and that they can contact the authorities for assistance if needed. A new Idaho law makes it a crime to coerce a woman into having an abortion by either physically harming her or threatening to do so. These new laws are the result of efforts by abortion opponents to characterize abortion providers as often being complicit in forcing women to have abortions, despite the absence of data to substantiate their claims.

• Six states addressed funding for abortion or alternatives to abortion. As part of its annual appropriations process, Maryland continued a long-standing limitation on the use of state Medicaid funds for abortions necessary in cases of life endangerment, rape, incest, fetal abnormality or when the woman's physical or mental health is at risk. Iowa also used its budget process to continue its policy of paying for medically necessary abortions under Medicaid. (See State Funding of Abortion Under Medicaid.) 

• Oklahoma's omnibus abortion law contains two provisions related to medication abortion. The first requires providers to follow the FDA-approved protocol, which would preclude offering women newer, widely used lower-dose regimens of the medication that have been found to be as effective with fewer side effects. The new law also limits the provision of medication abortion to physicians, despite the fact that advanced practice clinicians (such as physician assistants, certified nurse midwives and advanced nurse practitioners) are permitted to provide medication abortions (as opposed to surgical abortions) in many states; research has shown that they do so with the same level of safety and efficacy as physicians.

• The Oklahoma law also has two provisions not found in any other measure enacted last year. One prohibits a woman from suing a medical provider who does not give full and accurate information about her pregnancy if the misinformation results in her carrying the pregnancy to term, provided that the wrongful act or omission does not place the woman's life or health at risk. The other greatly expands the ability of health care professionals and facilities in the state to refuse to provide or refer for abortion. (See Refusing to Provide Health Services.)

Contraception and Prevention 

• Three laws enacted in 2008 were designed to improve access to contraceptives and other preventive services, while two new laws continued existing restrictions on state family planning funds.

• Wisconsin became the 16th state to require hospitals to provide medically accurate and unbiased information about emergency contraception to women who have been sexually assaulted. Hospitals must also provide the medication upon request. (See Emergency Contraception)

• A new law in Colorado clears the way for the state to seek federal permission to expand Medicaid eligibility for family planning services. A fiscal note accompanying the bill indicates that the state Medicaid agency expects to seek to raise the ceiling to 200% of the federal poverty level. Currently, 27 states have similar programs in place. (See Medicaid Family Planning Eligibility Expansions)

• Iowa enacted a provision requiring health plans issued in the state to cover the HPV vaccine if they include coverage for any immunization or vaccination. Four states (Colorado, Illinois, Nevada and New Mexico) adopted similar provisions in 2007.

• Also in 2008, Colorado and Michigan re-enacted long-standing restrictions on state family planning funds. The Colorado law prohibits state family planning funds from going to organizations that provide abortion services with their own funds. Michigan barred the use of state family planning funds for abortion services, including counseling and referral. Two other states have similar restrictions. (See State Family Planning Funding Restrictions)

Sex Education 

Unlike in 2007, when four states took steps related to sex education, including measures in two states to expand access to comprehensive sex education, the subject did not elicit significant attention in 2008. In fact, the only enacted measure related to sex education was one in New Hampshire, which permits a student to be excused from health or sex education for religious reasons. With this new law, 36 states and the District of Columbia permit students to be excused from sex education classes. (See Sex and STI/HIV Education) 

For summaries of major state legislative actions in 2008, click here.

For a table showing legislation enacted in 2008, click here.

For the status of state law and policy on key reproductive health and rights issues, click here.