Sex Education
Sex education continues to garner significant attention at the state level, with 80 bills having been introduced in 28 states. So far this year, three states (Hawaii, North Carolina and Oregon) have enacted legislation to promote comprehensive sex education. In May, the Hawaii legislature adopted a measure requiring sex education to include discussion of both abstinence and contraception. The measure also requires that sex education in the state be medically accurate and age-appropriate. After a prolonged delay, Gov. Linda Lingle (R) vetoed the bill in early July, but was promptly overridden by the legislature.
In North Carolina, Gov. Beverly Perdue (D) signed a measure expanding the state’s current sex education mandate to require inclusion of information on contraception and STIs. The measure also requires that all sex education be medically accurate and age appropriate. At the same time, however, the measure left in place the existing requirement that sex education also meet the federal eight-point abstinence definition (which requires, among other things, that the “exclusive purpose” of sex education is to teach the benefits of abstinence and that programs stress that sex outside of marriage has negative consequences).These newly enacted provisions and current abstinence education requirements are seemingly incompatible, which raises important questions about implementation of the revised law.
Enactment of these measures brings to 17 the number of states that require information about contraception to be included in their sex education programs <http://www.guttmacher.org/statecenter/spibs/spib_SE.pdf> . Meanwhile, a new Oregon law codifies existing state regulations that all sex education in the state be medically accurate. It also softens the existing requirement that abstinence be taught as the “safest and most responsible sexual behavior.” The new law requires that abstinence be portrayed as “the most effective way” to prevent pregnancy and STIs.
Family Planning Funding
Just about every aspect of state budgets has come under intense scrutiny this year. In three states, reproductive health advocates appear to have been able to deflect proposed spending reductions, while in four states, programs are likely to be substantially cut.
California is facing a severe budget crisis, with the state’s shortfall estimated to top $26 billion. As part of his plan to close the gap, Gov. Arnold Schwarzenegger (R) had proposed reducing provider reimbursement under the state’s Medicaid family planning expansion by nearly $37 million. However, with a deal finally in place, it appears that the family planning rate cut is not part of the package. In Iowa, two competing provisions of the budget approved by the legislature essentially leave family planning funding untouched. The original version of the budget included a 30% cut, reducing funding by $850,000. Although that provision remained in the budget, a second one was added that increased Medicaid reimbursement for family planning, effectively offsetting the initial provision. In Minnesota, legislators defeated an attempt to slash family planning funding by 20% and to cut the Medicaid reimbursement rate for family planning providers by 3%.
At the same time, budgets in three states (Massachusetts, Montana and Washington) significantly reduce family planning funding levels. The budget in Massachusetts instituted a funding cut approaching 20%, while cuts in Montana and Washington totaled 85% and 10% respectively. A fourth state, Michigan, has yet to approve a final budget, but appears to be on track for a substantial reduction in family planning funding.
Campaign to Recognize a Fetus as a Person
Over the course of this legislative year, abortion opponents have used two distinct strategies in their attempts to build on earlier efforts in Colorado and South Dakota to establish fetal personhood.
The first approach is patterned after a ballot initiative defeated in Colorado in November 2008 that would have amended the state constitution to confer personhood on a fetus at the moment of conception, thereby setting the stage to ban abortion and even most contraception. Legislators introduced similar measures in six states this year. In three states (Georgia, Maryland and Montana), the measures sought to amend the state constitution, while those in two states (Alabama and South Carolina) took aim only at state law. The North Dakota measure would have done both. Although none of the measures was enacted, bills were approved by one legislative chamber in Montana and North Dakota.
The second approach builds on a 2005 South Dakota law that requires a provider to inform a woman, as part of state-mandated abortion counseling, that the procedure “will terminate the life of a whole, separate, unique, living human being.” Legislators in four states (Indiana, Kansas, Missouri and North Dakota) introduced similar measures this year. Two of these measures secured legislative approval and made it to governors’ desks. The North Dakota bill was signed into law in April by Gov. John Hoeven (R). In Kansas, then-Gov. Kathleen Sebelius (D) vetoed the measure shortly before leaving to become Secretary of the Department of Health and Human Services, and the legislature sustained the veto. The Indiana and Missouri measures were each approved by one chamber before the legislatures adjourned for the year.
Meanwhile, abortion opponents are already looking beyond 2009. In Colorado and Montana, they have announced plans for a ballot initiative in 2010. In Mississippi and Oregon, they have been given the green light by the secretary of state to begin collecting signatures for a 2010 ballot initiative. All four of these proposals are similar to the Colorado 2008 initiative and would establish personhood at the moment of conception in the state constitution.
Click here for more information on:
Major state legislative actions so far in 2009
Legislation enacted in 2009
The status of state law and policy on key reproductive health and rights issues
By the end of March 2009, a total of 704 measures related to sexual and reproductive health had been introduced in the 49 legislatures that have convened so far this year, and 11 new laws had been enacted in five states. One of the laws passed allows the provision of treatment for sexually transmitted infections (STI) for a patient's partner (Utah), while two increase access to emergency contraception (Utah and Virginia). The remaining eight laws are all related to abortion. These laws:
In addition, we are seeing
three major new trends emerging in states across the nation:
1. Establishing Fetal Personhood
Legislators in six states (Alabama, Georgia, Maryland, Montana, North Dakota and South Carolina) have introduced measures similar to one that was soundly defeated by voters in Colorado last year that would have declared a fetus a person from the moment of conception. This strategy is being pursued by an emerging far-right wing of the anti-abortion movement, in explicit rejection of what is perceived as a willingness on the part of some mainstream organizations to push for restrictions that would reduce abortion rather than ban it entirely.
[Note: The measures in Alabama,
Maryland and South Carolina are still pending, while those in Montana
and North Dakota were each passed by one chamber of the legislature
but then defeated in the second chamber; the Georgia legislature adjourned
for the year without taking any action on its bill.]
Although they all seek a similar end, the measures would take different routes to achieving their goal. The bills introduced in Georgia, Montana and Maryland would put a measure on the ballot in 2010 to establish fetal personhood, while those in Alabama, North Dakota and South Carolina would formally interpret existing state statutory or constitutional provisions to extend personhood to a fetus. The wording of the measures differs slightly as well. The bills in Alabama, Georgia and South Carolina would define a fetus as a person from the "moment of fertilization." The Maryland and Montana bills would apply to a fetus at "any stage of human biological development," and the North Dakota bill would apply to "any organism... that possesses the human genome." Nonetheless, all of the measures would affect contraception as well as abortion.
2. Mandating Medically Accurate Sex Education
Thirty-six bills have been introduced so far this year in 20 states that would require medical accuracy in school sex education. (In 2008, 20 such measures were introduced in 12 states.)
Measures have already been
approved by a legislative chamber in Hawaii and Oregon. A bill approved
by the Hawaii Senate in February would require that all sex education
in the state include information on both abstinence and contraception
and be medically accurate and age-appropriate. The legislation specifies
that the instruction would have to be in accordance with "accepted
scientific methods and recognized as accurate and objective by professional
organizations and agencies with expertise in the relevant field, such
as the federal Centers for Disease Control and Prevention (CDC), the
American Public Health Association, the American Academy of Pediatrics
and the American College of Obstetricians and Gynecologists."
The measure approved by the
Oregon House in March would codify existing state regulations requiring
that sex education be medically accurate. It would also replace the
regulations' mandate that abstinence be described as "the most safe
and responsible sexual behavior" for unmarried individuals with a
requirement to teach abstinence as "the most effective method" of
pregnancy and STI prevention for monogamous adults.
Twelve states currently require that the information provided in sex education classes be medically accurate. In 10 of these states (California, Colorado, Georgia, Iowa, Maine, Michigan, Oregon, Rhode Island, Utah and Washington), the mandate applies to all sex education in the state. In two states (Alabama and North Carolina), the requirement applies only to the information provided about contraception.
3. Treating Partners for STIs
In 2006, the CDC recommended that health care providers treating patients for chlamydia and gonorrhea also provide treatment for the patient's partner, even if he or she has not been seen by the provider. Between 2006 and 2008, six states (Arizona, California, Iowa, Louisiana, Minnesota and New York) have adopted laws, and three states (New Mexico, North Dakota and Tennessee) have promulgated regulations to allow physicians to write prescriptions for a partner, even if the provider has not seen the partner. Some of the laws also require that patients take home information for their partner, such as fact sheets about infection, treatment, and possible allergic reactions to medication. This year, similar measures have been introduced in eight states (Illinois, Missouri, Montana, Nevada, Oregon, North Dakota, Utah and Vermont); the Utah measure was enacted.
Bills pending in three states
(North Dakota, Nevada and Oregon) would allow partner treatment for
all STIs, while those in three others (Illinois, Missouri and Montana)
would apply to treatment for chlamydia and gonorrhea; the bill pending
in Vermont would apply only to chlamydia treatment. The new Utah statute
applies to chlamydia and gonorrhea, bringing to 10 the number of states
explicitly permitting partner treatment for at least some STIs.
Click here for additional information on:
State reproductive health legislative developments this year
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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.
Contraception and Prevention
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.
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In contrast to the usual procedure
in which proposed state laws move through the legislature and, following
approval, go to the governor for signature, ballot initiatives allow
voters in some states to bypass the conventional legislative process
entirely. This strategy, which has been used in the past by antichoice
advocates, allows measures approved by the electorate to either become
law or amend the state constitution without legislative approval. Advocates
in two states (South Dakota and Colorado) have secured sufficient signatures
to force a vote on measures that take different approaches toward the
long-term goal of banning abortion. In California, meanwhile, the electorate
will vote for the third time in four years on an initiative to require
parental notification prior to a minor's abortion.
The measure that will go before South Dakota voters in November would ban most abortions outright. This is the second attempt to ban abortion in South Dakota in the past two years. In 2006, voters defeated an initiative that would have prohibited abortion except in cases of life endangerment. In contrast, the measure before voters this year seeks to ban abortion except in cases of life endangerment, rape and incest and if "there is serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system." As was the case with the 2006 initiative, the purpose of this year's attempt is to bring a direct challenge to Roe v. Wade to the U.S. Supreme Court.
Abortion opponents in Colorado are taking a more indirect approach to the same long-term goal of banning abortion: A proposed amendment to the state constitution on the ballot this November would define a person throughout Colorado law as a "human being from the moment of fertilization."
Moreover, the reach of the
Colorado initiative potentially goes much further. By declaring
that legal personhood begins at fertilization, the initiative could
pave the way for banning common methods of birth control, including
oral contraceptives, which may sometimes act post-fertilization (although
their primary mode of action is to block ovulation). In this way, the
Colorado provision is strikingly similar
to regulations currently under consideration -- but
not as yet formally proposed -- by the Bush administration, which would
allow a wide range of individuals and institutions involved in health
insurance or health care to self-define such contraceptives as abortifacients
so as to claim a conscientious objection to paying for them, providing
them or even tangentially assisting in their provision.
The third initiative related
to reproductive health issues will be yet another attempt to secure
approval of a measure to require parental notification when a teen in
California seeks an abortion. Similar proposals were presented and soundly
defeated in 2005 and 2006. (A state law requiring parental consent was
overturned by the California Supreme Court in 1997.) If the current
initiative is passed, a minor would be unable to obtain an abortion
for 48 hours after a physician has informed her parents in writing of
his or her intent to perform the procedure. Passage of the California
measure would bring to 36 the number of states requiring parental
involvement for minors seeking an abortion.
]]>For summaries of major state legislative actions so far this year, 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.
In its most direct effect, the Court's decision to uphold the Federal Partial-Birth Abortion Ban Act of 2003 set a major precedent that state legislators seem to be following. Twenty-three bills banning "partial-birth" abortion have been introduced in 11 states so far this year. In four states (Alaska, Kentucky, Michigan and Wisconsin), the measures have passed one house of the legislature and are pending in the second chamber. A fifth measure has been approved by the legislature in Arizona. (It was vetoed by Gov. Janet Napolitano [D] in April).
Almost all of the states in which legislation has been proposed already have adopted a ban that has been enjoined and so is not in effect (see Bans on "Partial-Birth" Abortion). Some of pending measures attempt to modify these enjoined laws while others seek to enact a whole new law; in either case, these bills are drawing upon language from the federal ban in hopes that that they will pass constitutional muster.
Most of these measures are characterized by their definition of the procedure, lack of a health exception and strict penalties. The Court upheld the federal ban, in part, because it found the definition of the procedure to be sufficiently precise so as to exclude most common second trimester procedures. To follow this precedent, the pending state measures generally lift the federal ban's definition almost verbatim.
While it does include an exception for those instances where a "partial-birth" procedure is necessary to save a woman's life, the federal ban does not make an exception to preserve a woman's health. Again, state legislation is following suit. While all of the bills under consideration include a life exception, most fail to include an exception to preserve the woman's health.
Finally, the pending bills would expand local discretion in deciding when to prosecute a case and the penalties that could be assessed. Although federal prosecutors would need to bring charges under the federal ban, local authorities, who might come under intense political pressure, would be empowered to file charges against physicians under the state provisions. Moreover, some of the bills pending in the states would permit penalties even stiffer than those provided for in the federal ban.
In addition to upholding the federal ban on "partial-birth" abortion, the Court's decision in Gonzales v. Carhart included language essentially inviting states to utilize their abortion counseling requirements to include the provision of information aimed at dissuading women from obtaining an abortion. (For additional information see State Abortion Counseling Policies and the Fundamental Principles of Informed Consent.) So far this year, most of the attention given to issues related to abortion counseling has been focused on measures that would mandate the provision of information or services related to ultrasound prior to an abortion.
The 16 measures that have been introduced in 11 states take a variety of approaches. Measures in eight states (Colorado, Georgia, Kansas, Missouri, New Jersey, New York, South Dakota and West Virginia) would require abortion providers to offer information related to ultrasound and/or refer the woman to agencies where the procedure may be obtained. In three states (Kansas, Ohio and South Carolina), the measures would require the abortion provider to offer the woman the opportunity to view the ultrasound image whenever the procedure is performed as part of the preparation for an abortion.
Most dramatically, measures in eight states (Florida, Kentucky, Missouri, North Carolina, Oklahoma, Tennessee, Virginia and West Virginia) would go so far as to require the provider to perform an ultrasound prior to any abortion. Some of these would require that the woman be given the opportunity to review the image, while others would not give her that choice. Bills that have passed one house of the legislature in Kentucky and Oklahoma require the provider to review the image with the woman, while permitting the woman to "avert" her eyes from the image if she chooses.
So far this year, two states have enacted new laws. A new law in South Dakota requires every woman seeking an abortion to under go an ultrasound and to be given the option of viewing the image. A law adopted in Ohio requires that a woman be offered the opportunity to view an ultrasound whenever one is performed in preparation for an abortion. With the addition of these new measures, 15 states have laws on ultrasound provision. (For additional information see Requirements for Ultrasound.)
For summaries of major state legislative actions so far this year, click here.
For a table showing legislation enacted in 2008, click here.
For the status of state laws and policies on key reproductive health and rights issues, click here.
Related Posts
Some of the more important legislative highlights and lowlights are presented below (a more extensive overview can be found here).
Highlights:
Lowlights:
States were somewhat more willing to address the issue of coverage for the HPV vaccine in private insurance plans, with four states adopting measures. Three of the four laws include a specific age range, with Colorado requiring coverage for girls aged 9-26, New Mexico requiring coverage for girls 9-14 and Illinois requiring coverage up to 18. The provision adopted in Nevada requires coverage as recommended by a "competent authority," such as the Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices, which has recommended that the vaccine be administered routinely to all girls aged 11-12, and as early as age nine at a doctor's discretion, as well as to adolescents and young women aged 13-26, as part of a "catch-up" campaign (see this article for more information on the role of family planning providers in that effort).
In another set of positive developments, three legislatures moved to direct their states to apply for federal permission, known as a waiver, to expand eligibility for family planning services under Medicaid to women who would otherwise not be eligible. The New Hampshire legislation is the most general, simply instructing the state to apply for an expansion. The Missouri legislation directs the state to move to extend eligibility to women with a family income up to 185% of the federal poverty level. (Missouri already has a more limited waiver to provide coverage for family planning to women for up to a year following a Medicaid-funded delivery.)
Finally, the Virginia legislature adopted the second measure in as many years to expand eligibility for family planning services under Medicaid. Like Missouri, Virginia already extended coverage to women postpartum. In 2006, the legislature directed the state to apply for a waiver to extend eligibility for family planning to individuals with an income up to 133% of poverty, which was the ceiling for Medicaid coverage of pregnancy-related care in the state; that application was filed in May 2007. When the state raised that ceiling this year, the legislature moved to maintain parity between the two levels, directing the state to extend eligibility for family planning to individuals with an income up to 200% of poverty. On September 28, the federal government approved the state's earlier application to extend eligibility to 133% of poverty, bringing the number of states that have income-based Medicaid family planning expansions to 20.
Meanwhile, in contrast to these positive developments, eight states continued funding for organizations that promote "alternatives-to-abortion." These funds are often distributed to groups such as "crisis pregnancy centers," which encourage women to consider adoption instead of abortion, and which have been shown to provide misleading information to women. Five of these states (Arizona, Missouri, Ohio, Oklahoma and Pennsylvania) specifically prohibit funds from being disbursed to organizations that provide abortion services, including referral and counseling. The remaining three states (Louisiana, North Dakota and Texas) specify only that their funds are to be distributed to organizations that promote childbirth and provide pregnancy support services.
For summaries of major state legislative actions so far this year, click here.
For a table showing legislation enacted in 2007, click here.
For the status of state law and policy on key reproductive health and rights issues, click here.
]]>Meanwhile, Colorado and Washington enacted new laws this year that require discussion of both abstinence and contraception in school sex education classes, bringing to 15 the number of states with such policies. These new laws, along with a third enacted in Iowa, require that all information provided in sex education classes be medically accurate. (See note below.)
In addition to these successes, reproductive rights supporters also largely held the line in the fight against state abortion bans. Of the 27 bills that were introduced in 16 states this year, only two were enacted: in Mississippi and North Dakota. These bans, which would take effect only if Roe v. Wade is overturned, bring to four the number of states with such a policy. With no additional abortion ban proposals pending in any of the legislatures remaining in session, the issue appears dead for the legislative year.
Finally, the Supreme Court's Gonzales v. Carhart decision in April to uphold the constitutionality of the federal Partial-Birth Abortion Ban Act ignited an immediate flurry of judicial and legislative action, with federal courts re-examining previously enjoined bans in several states. Shortly after the decision was handed down, the injunction was lifted against Utah's law, whose description of the banned procedure is basically in keeping with that in the federal law; like the federal law, the Utah measure also has no health exception. Courts are currently considering lifting injunctions against bans in Missouri and Virginia; the language of these laws is also similar to that of the federal ban. On the flip side, a federal judge upheld the injunction against Michigan's "partial-birth" abortion ban on the grounds that it could have prohibited other common abortion procedures. Currently, 31 states have "partial-birth" abortion bans on the books, although laws are in effect in only five. The extent to which Gonzales v. Carhart will clear the way for judicial implementation in any of the remaining 26 states is yet to be determined. (See note below.)
Meanwhile, although the Supreme Court's decision in Gonzales v. Carhart came late in the state legislative season, it also had an immediate impact on legislators; within days, legislators in two states introduced three bills to ban "partial-birth" abortion, with definitions of the procedure largely in line with that of the federal ban but with more severe penalties. So far this year, legislators in nine states have introduced 14 bills. Of these, the measure in Louisiana is the only one to have reached a governor's desk and likely will remain the only one to be enacted this year. In the remaining states, either the legislature has adjourned for the year or the provision has failed to progress beyond the committee level. Clearly, however, this is an area ripe for legislative action next year.
Note to Readers: Two new laws that might endanger reproductive health and choice have been enacted since we completed our above analysis of legislative trends for the first half of the year. In Missouri, a new law removed the requirement for comprehensive sex education by allowing abstinence-only education. And in Louisiana, a new law similar to the recently upheld Federal Abortion Ban now prohibits "partial-birth" abortion.
]]>Editor's note: This post was coauthored by Rachel Benson Gold & Elizabeth Nash. Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.
With the legislative year in full swing in most states, some interesting trends are emerging. Even before the recent Supreme Court decision upholding the federal "Partial Birth Abortion Ban Act"—widely regarded as demonstrating the fragility of the basic abortion right guaranteed in Roe v. Wade—legislators in several states had taken at least preliminary steps toward enacting state legislation aimed either at banning abortion or, alternatively, protecting abortion rights.
By the end of the first quarter, 24 abortion ban bills had been introduced in 16 states; Mississippi, however, was the only state to enact a law, a measure that would ban abortion in the event Roe is overturned. Comparable legislation was defeated in Utah, however, as were immediate abortion bans—blatantly unconstitutional measures aimed at forcing the Supreme Court to reconsider Roe—in Mississippi and South Dakota. Abortion bans remain under active consideration in nine additional states, although only one of these, a North Dakota bill, has been approved by at least one legislative chamber. Meanwhile, legislators in Rhode Island have introduced two measures aimed at protecting a woman's right to abortion, which are similar to laws in place in seven other states.
Whether interest in legislation to either ban abortion or to protect abortion rights intensifies in the wake of the Court's ruling on the federal Partial Birth Abortion Ban Act remains to be seen. More likely, given that the Court upheld that law even though it did not contain a health exception, its action will prompt attempts by antiabortion state lawmakers to enact (or reenact) a variety of state restrictions on abortion access that also do not have health exceptions. Also likely are new antiabortion "informed consent" proposals designed to give women more, and more detailed, information about fetal development and the abortion procedure they are about to undergo.
So far this year, however, the major abortion-related issue to receive extensive attention at the state level is that of minors' access. By the end of the first quarter, legislators in 23 states had introduced 50 bills related to parental notice or consent. One new parental consent law has been enacted, in Idaho. With passage of this law, which replaces an existing state law that has not been in effect because of a court order, 22 states now require parental consent, 11 require parental notice, and two require both notice and consent before a minor may obtain an abortion. At the moment, all of these laws have a health exception.
Another measure that has received much attention seeks to safeguard minors' access by blocking implementation of New Hampshire's long-enjoined parental notice requirement. Last year, in Ayotte v. Planned Parenthood of Northern New England, the U.S. Supreme Court directed the lower court to issue a final ruling on the law, which could clear the way for it to be implemented. In an attempt to forestall that possibility, prochoice legislators in the state, supported by New Hampshire's new governor, have moved to repeal the underlying law; the repeal bill was approved by the House in March.
Beyond the abortion issue, the issue of HPV vaccination for middle school students has been a major concern among legislators this year. By the end of the first quarter, 42 bills had been introduced in 26 states and Washington, DC, that would include HPV on the list of vaccines necessary for school attendance.
As resistance to such a mandate has grown around the country, the only policy change approved by the end of the first quarter came through an executive order issued by Texas Gov. Rick Perry (R). Following the governor's action, momentum has mounted to overturn that decision, with a measure to do that racing through the legislature with seemingly veto-proof support and a separate lawsuit seeking to block the rule filed by parents of elementary school students in the state. In early April, New Mexico Gov. Bill Richardson (D) vetoed an HPV mandate, while Virginia Gov. Tim Kaine (D) signed what may well be the nation's first HPV mandate to actually go into effect.
For more information on:
Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.
Literally hundreds of bills relating to reproductive health and rights get introduced in state legislatures every year. While most of them never make it all the way through the legislative process, several dozen usually do become law—and it is crucial for SRH advocates to be aware of the trends in state legislatures, both positive and negative.
Over the course of 2006, 29 states enacted a total of 62 new laws addressing a wide range of reproductive health and rights-related concerns. Although this represents nearly 20% fewer laws than the 78 enacted in 2005, it follows a long-standing pattern of lessened activity in even-numbered years that may be largely due to circumstances unrelated to reproductive health politics: 21 states only address budget bills—the locus of much reproductive health policymaking—in odd-numbered years, and legislatures in six states convene only in odd-numbered years. This analysis addresses enacted laws related to abortion (26 new laws), contraception (11) and statutory rape reporting (3).
]]>Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.
Literally hundreds of bills relating to reproductive health and rights get introduced in state legislatures every year. While most of them never make it all the way through the legislative process, several dozen usually do become law—and it is crucial for SRH advocates to be aware of the trends in state legislatures, both positive and negative.
Over the course of 2006, 29 states enacted a total of 62 new laws addressing a wide range of reproductive health and rights-related concerns. Although this represents nearly 20% fewer laws than the 78 enacted in 2005, it follows a long-standing pattern of lessened activity in even-numbered years that may be largely due to circumstances unrelated to reproductive health politics: 21 states only address budget bills—the locus of much reproductive health policymaking—in odd-numbered years, and legislatures in six states convene only in odd-numbered years. This analysis addresses enacted laws related to abortion (26 new laws), contraception (11) and statutory rape reporting (3).
Abortion
Clearly unconstitutional abortion bans, designed as a direct challenge to Roe v. Wade, received considerable attention in state legislatures in 2006, with proposed bans introduced in 12 states. South Dakota became the first state in 15 years to pass such a law, making all abortions illegal in the state unless the woman's life is endangered. (Similar laws adopted in Louisiana and Utah in 1991 were predictably struck down in federal court.) Following the measure's passage, a petition put it before South Dakota voters in November, who soundly defeated the ban, 56% to 44%.
Taking a different approach, legislators in five states introduced measures to ban abortion immediately if Roe is overturned. Louisiana was the only state to enact such a law in 2006. That measure, which is similar to one already on the books in South Dakota, would prohibit a woman from obtaining an abortion unless continuing the pregnancy could cause a severe risk to her physical health or result in her death.
Meanwhile, legislators in five states introduced bills designed to protect abortion rights notwithstanding the future of Roe. Hawaii was the only state to enact a new law, which prevents the state from interfering with a woman's access to abortion before viability or when it is necessary to protect her life or health. This brings to seven the number of states that explicitly protect abortion rights. (See Abortion Policy in the Absence of Roe.)
Four states moved to tighten existing requirements for minors seeking an abortion. Two states, Oklahoma and Utah, added provisions requiring parental consent for a minor seeking an abortion to their existing requirement that a parent be notified. With passage of these new laws, 21 states now require parental consent, 11 require parental notice and two require both before a minor's abortion. (See Parental Involvement in Minors' Abortions.)
On the other side of the ledger, voters in California and Oregon dealt a severe blow to antichoice forces by defeating ballot initiatives to require parental notification before a minor may obtain an abortion. Both results came as somewhat of a surprise. Polling in Oregon had suggested the initiative would pass, while the California proposal was soundly defeated for the second year in a row.
Two additional states, Tennessee and Texas, adjusted their policies to ensure that those consenting to an abortion for a minor are, in fact, the minor's parent. Tennessee enacted legislation requiring proof of parenthood, and the Texas Medical Board issued rules requiring that the consent form be notarized. (Arizona Gov. Janet Napolitano (D) vetoed a similar measure.)
Legislators have long looked to mandating specific content of the counseling information prior to having an abortion as a way to deter women from terminating a pregnancy. In recent years, many have focused on requiring that a woman be told that fetuses have the ability to feel pain at 20 weeks' gestation. In 2006, Oklahoma adopted a measure requiring that a woman seeking an abortion be told that a fetus may feel pain after 20 weeks' gestation. Similar bills were passed by one house of the legislature in Arizona, Indiana, Louisiana and Utah, and vetoed by the governors in Arizona and Wisconsin. The new Oklahoma law brings to five the number of states requiring that women be given unsupported information about fetal pain. (See Mandatory Counseling and Waiting Periods for Abortion.)
In a closely related strategy, legislators have looked to promoting ultrasound imaging as a means of deterring women from seeking an abortion. Under a measure adopted in Oklahoma in 2006, abortion providers must offer an ultrasound image of the fetus during abortion counseling; this brings to six the total number of states requiring that ultrasound be offered. Addressing the issue from a somewhat different perspective, Michigan enacted legislation requiring that when an ultrasound is performed as part of an abortion counseling session, the physician must give the woman the opportunity to view and take home the ultrasound image.
In contrast, Idaho adopted a measure requiring that the abortion counseling materials developed by the state be "medically accurate and nonmisleading." By enacting this law, Idaho joins Alaska and Wisconsin in requiring that all information covered is medically accurate. In 18 other states, a more limited medical accuracy provision applies to only certain aspects of the materials, most often the information related to fetal development. Virginia is alone among the 22 states with state-developed abortion counseling materials with no requirement for medical accuracy.
Six states took steps to promote "alternatives to abortion" in 2006, using three different strategies. Arizona, Louisiana, Missouri, Oklahoma and Pennsylvania all provided funding for programs providing alternatives. The Missouri measure explicitly prohibits the funds from being used for family planning services or referrals; the state also explicitly made donations to so-called crisis pregnancy centers exempt from state taxes. Finally, a measure enacted in Georgia will create "choose life" license plates, and will earmark funds generated from the sale of the plates to groups that encourage women to consider adoption instead of abortion; this brings to 16 the number of states authorizing the sale of these license plates. (See ‘Choose Life' License Plates.)
Four states adopted provisions related to abortion providers. Pennsylvania and South Dakota adopted laws imposing regulations on abortion clinics. The South Dakota measure gives the state Department of Health extremely wide latitude in regulating and inspecting abortion facilities. The Pennsylvania measure increases both the fees and administrative obligations for abortion facilities that perform over 100 abortions per year.
At the other end of the spectrum, California and Washington adopted measures designed to protect access to abortion clinics. The new California law makes it a crime to disclose the names of clinic employees, volunteer or patients with the intent of threatening them, while the measure adopted in Washington prohibits insurers from refusing to insure an abortion provider that has been the victim of arson or vandalism.
Two states moved to continue existing state policy related to the use of public funds for abortion services. Maryland reenacted its long-standing policy to pay for abortions for Medicaid recipients when the woman's physical or mental health would be threatened or the pregnancy was the result of rape or incest. Including Maryland, 17 states pay for all or most abortions for low-income residents. Also last year, Michigan reenacted its policy prohibiting insurance coverage of abortion for employees of community colleges unless the woman's life is endangered. (See State Funding of Abortion Under Medicaid.)
Contraception
State policymakers took steps both legislatively and administratively to expand access to contraception through both employer-sponsored insurance and Medicaid in 2006. The New Jersey legislature enacted a law mandating private-sector insurance coverage of contraceptive services and supplies. Three additional states expanded contraceptive coverage by administrative action. The Montana Attorney General, the Michigan Civil Rights Commission and the Wisconsin Department of Workforce Development all concluded that excluding contraceptives from health plans that cover other prescription drugs constitutes sex discrimination. As a result of these moves, 26 states now mandate insurance coverage of contraceptive services and supplies. (See Insurance Coverage of Contraceptives.)
[Also this year, New York's highest court upheld the provision in that state's long-standing mandate permitting only bona fide religious employers—those whose mission is to promote the doctrines of a specific faith and who primarily employ and serve people sharing that faith—to refuse to include coverage in their insurance policies.]
State legislatures and health departments are also continuing to expand eligibility for family planning services under Medicaid. For several years, Virginia has provided extended family planning coverage for two years following a Medicaid-funded delivery to women otherwise leaving the Medicaid rolls. In 2006, the legislature directed the state to apply for federal approval to include all women in the state with an income up to 133% of poverty, regardless of any prior relationship with Medicaid. To date, 25 states have obtained federal approval to expand Medicaid eligibility for family planning services to certain classes of individuals who are otherwise ineligible for Medicaid; 17 of these states provide family planning benefits to individuals based on their income alone. (See State Medicaid Family Planning Eligibility Expansions.)
Two states also took steps to improve access to contraceptive supplies in pharmacies. Vermont adopted a measure permitting pharmacists to dispense emergency contraception without a prescription, bringing to nine the number of states permitting pharmacists to dispense the medication under the aegis of a collaborative practice arrangement with a physician or through a state protocol. With the federal Food and Drug Administration ruling in mid-2006 to allow over-the-counter distribution of emergency contraception to adults, these measures now apply only to minors. Finally, a measure adopted in California requires pharmacies to post a notice in a conspicuous place outlining individuals' right to access their medications in a timely manner. A similar requirement was instituted in Illinois by way of an administrative regulation. (See Emergency Contraception.)
While most of the measures relating to contraception enacted in 2006 were aimed at expanding access, some were not. Colorado, Michigan, Ohio and Pennsylvania all moved to continue long-standing restrictions that prohibit state family planning funds from being used to provide counseling or referral for abortion. All of these states except Michigan (in which such action is unnecessary) also used their annual budget process to extend existing requirements that state-funded family planning providers be physically and financially separate from abortion services. (See State Family Planning Funding Restrictions)
Finally, Wisconsin moved to require that all sex education provided in the state teach that abstinence before marriage is the preferred behavior and emphasize that abstinence from sexual activity is the most effective way to prevent pregnancy and sexually transmitted infections; the law does not mandate that information about contraception be provided. This law brings to 22 the number of states requiring preferential treatment of abstinence in sex education. (See Sex and STD/HIV Education.)
Statutory Rape Reporting
Several legislatures addressed the question of mandated reporting of all instances of technical statutory rape, a trend that is worrisome to adolescent health advocates, who fear that such reporting requirements, while facially protective, may have a chilling effect on minors seeking care and on providers. Minors might be less likely to seek either family planning or abortion services for fear their partners may be prosecuted, while health care providers could be forced to artificially delineate between consensual sex and abuse. Legislation tightening the requirements for reporting suspected cases of statutory rape was introduced in 15 states in 2006, a dramatic increase from 2005, when measures were introduced in 4 states.
In 2006, Missouri and Tennessee both enacted tough new reporting requirements. Under the new Missouri law, a physician treating a pregnant minor who has reason to suspect that the pregnancy is the result of statutory rape must file a report; in the past physicians were only required to report suspected cases of child abuse. Abortion practitioners in Tennessee must file a report with the Tennessee Bureau of Investigation when performing an abortion on a minor under 13; they must also save fetal tissue from the procedure for use in a possible criminal investigation. Also in 2006, Kansas Attorney General Phill Kline (R) attempted to require health care providers to file sexual abuse reports to law enforcement agencies in instances of consensual sex between minors, which is technically illegal under state law. The move was challenged in court and garnered wide media attention before being overturned.
]]>Check out more posts by Elizabeth Nash and Rachel Gold.
Editor's note: This blog post is coauthored by Rachel Benson Gold and Elizabeth Nash.
Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.
Nothing is certain in life but death and taxes, and maybe the fact that the world of reproductive health can always be counted upon to generate plenty of excitement. For those of us who make a living following reproductive health issues at the state level, 2006 is no exception - with high-profile events like the referendum on South Dakota's abortion ban or the ballot initiatives on parental notification for abortion in California and Oregon only the tip of the iceberg.
So what all has been happening so far in 2006? By the beginning of October, just over 1,200 bills on topics related to sexual and reproductive health had been introduced in the 50 state legislatures-and 107 new laws had been enacted in 37 states.
But even as reproductive rights continue to come under attack in a number of states, state-level advocates and national organizations are working to protect and increase access to reproductive health care. As a result of their work we also have many positive developments to report.
]]>Editor's note: This blog post is coauthored by Rachel Benson Gold and Elizabeth Nash.
Rachel Benson Gold is the Guttmacher Institute's Director of Policy Analysis and Elizabeth Nash holds the position of Public Policy Associate. Both work in the Institute's Washington-based Public Policy Division.
Nothing is certain in life but death and taxes, and maybe the fact that the world of reproductive health can always be counted upon to generate plenty of excitement. For those of us who make a living following reproductive health issues at the state level, 2006 is no exception - with high-profile events like the referendum on South Dakota's abortion ban or the ballot initiatives on parental notification for abortion in California and Oregon only the tip of the iceberg.
So what all has been happening so far in 2006? By the beginning of October, just over 1,200 bills on topics related to sexual and reproductive health had been introduced in the 50 state legislatures-and 107 new laws had been enacted in 37 states.
But even as reproductive rights continue to come under attack in a number of states, state-level advocates and national organizations are working to protect and increase access to reproductive health care. As a result of their work we also have many positive developments to report. Among the most significant measures supportive of sexual and reproductive health and rights that have been enacted so far this year are provisions that:
Unfortunately, there are plenty of instances where states have enacted measures that are hostile to sexual and reproductive health and rights. Among the most significant are provisions that:
(For more information on state laws on reproductive health issues click here to see Guttmacher's state policy fact sheets.)
Among the many disparate developments in state legislatures, some interesting trends in insurance coverage for reproductive health services are emerging. Although only one state, New Jersey, has enacted a new law this year mandating private-sector insurance coverage of contraceptive services and supplies, a total of four states, in fact, have acted to guarantee such coverage.
Significantly, the three other states took administrative, rather than legislative, approaches to the issue. The Montana Attorney General, the Michigan Civil Rights Commission and the Wisconsin Department of Workforce Development all concluded that excluding contraceptives from health plans that cover other prescription drugs constitutes sex discrimination. To date, 26 states across the country have adopted a legislative or administrative policy mandating insurance coverage of contraceptive services and supplies (See Insurance Coverage of Contraceptives).
Also this year, New York's highest court upheld the provision in that state's mandate limiting the right to refuse to include contraceptive coverage only to bona fide religious employers - basically defined as those whose mission is to promote the doctrines of a specific faith and who primarily employ and serve people sharing that faith. The provision had been challenged by a coalition of religiously-affiliated organizations in the state as being too narrow. The new contraceptive coverage mandate in New Jersey also includes an exemption for religious employers, although the definition of that term is somewhat broader than in New York.
In other areas of sexual and reproductive health, two states that had already mandated coverage of pap tests expanded their requirement to other services related to cervical cancer. A newly adopted California measure adds a mandate for coverage of HPV testing, while West Virginia expanded its requirement to include newer forms of cervical cancer diagnosis, such as Thinprep®, as well as HPV testing. At the same time, however, the West Virginia measure restricts the benefits of the mandate, including the already-existing provision related to pap tests, to women 18 and older.
Bucking the trend to expand coverage, Rhode Island moved to curtail coverage of infertility services. The measure adopted this year requires infertility coverage only for married women aged 25-40 who are unable to conceive after two years. Under the previous mandate, coverage was required for married women, regardless of age, who had been unable to conceive for one year.
If you are interested in keeping up with sexual and reproductive health and rights developments in the states, please check the Guttmacher Institute's monthly state policy updates or subscribe to our State News Quarterly electronic newsletter.
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