The Supreme Court determined in Roe v. Wade that abortion is a fundamental right, which means that access to abortion should have the same protections throughout our country and not vary based on where a woman lives. Yet in a subsequent 1992 decision, Planned Parenthood v. Casey, the Court upheld several state restrictions on abortion, finding that they did not impose an “undue burden” on a woman’s decision to have an abortion.
From that point on, antiabortion advocates have fought hard to restrict abortion at the state level in any way they can. They introduce literally hundreds of state bills across the country each year aimed at limiting access to abortion and testing the limits of Roe. And each year they succeed in enacting a handful of those bills. Some 600 such laws have passed since 1995.
States currently have abortion laws that, among other things, mandate biased counseling and burdensome waiting periods, impose costly and unnecessary clinic regulations, require parental notification or consent, restrict funding for abortion, ban a safe pre-viability abortion procedure, and allow health care providers to refuse to provide needed medical care.
In some ways, this year is no different than any other—abortion opponents have once again introduced a multitude of bills to restrict abortion. But what has changed is that, on the heels of the fight over abortion in federal health insurance reform legislation, antiabortion activists have gained renewed momentum.
Antiabortion Sen. Ben Nelson (D-NE) brokered language in the Patient Protection and Affordable Health Care Act that all but invites states to ban coverage of abortion in private health insurance plans by “opting out” of abortion coverage in the state health insurance exchanges that must be established by 2014. Americans United for Life noted the opening and had model legislation ready to go the second the health reform measure was signed. The result: 29 states already have abortion opt-out bills in the pipeline for the 2010 and 2011 legislative sessions.
The sponsors of these bills claim that their legislation only restricts public funding of abortion care. But closer inspection reveals that these bills mimic the infamous Stupak Amendment, which abortion-rights proponents fought so hard to beat back in federal legislation, and will broadly limit private coverage of abortion in the states where these bills are enacted.
In addition to the insurance restrictions, abortion opponents are also using their newfound leverage to advance many of their old ideas—such as requiring ultrasounds before an abortion—and to push through a few novel ones, as well.
Here are the high—or should we say low—lights:
23: The number of provisions that have passed in the nine states that have enacted new abortion-related restrictions so far this year—Arizona, Idaho, Mississippi, Nebraska, Oklahoma, Tennessee, Utah, Virginia, and West Virginia.
14: The number of states that have introduced laws this year that ban or limit abortion coverage in private insurance plans—either those purchased in the new health exchanges, in private markets outside of those exchanges, in government employee plans, or some combination thereof. So far, Arizona, Mississippi, and Tennessee have enacted such bills.
18: The number of states that have introduced legislation this year that requires abortion providers to offer their patients an ultrasound. Half of these bills mandate that the provider perform the ultrasound, regardless of whether the woman wants one, and a few go so far as to require the provider to show and/or describe the image to the woman. None of these bills provide state funding to cover the extra cost of the ultrasound. So far, Oklahoma, Utah, and West Virginia have enacted ultrasound bills.*
14: The number of states that have introduced legislation or ballot initiatives this year to amend the state constitution to establish that legal personhood begins at conception, which would limit access to abortion, contraception, fertility treatments, and other medical services.
9: The number of states that have introduced bills this year that would criminalize abortions done purportedly because of the sex or race of the fetus.* Only Oklahoma’s bill has thus far become law.
9: The number of states that have introduced Targeted Regulation of Abortion Providers, or TRAP, laws this year that impose burdensome and medically unnecessary requirements on abortion clinics that are much more rigorous than the requirements imposed on other outpatient medical practices.*
8: The number of bills that Oklahoma passed this year. The governor signed bills outlawing “sex-selective” abortion; allowing employees to refuse to participate in abortions, fetal transplants, procedures involving embryos, and euthanasia; requiring clinics to post signs saying that women cannot be forced to have abortions; and increasing restrictions on RU-486, also known as the “abortion pill.” The governor vetoed an insurance coverage ban, mandatory ultrasounds with a detailed description of the fetus, a 38-question survey about each abortion procedure, and immunity for doctors who omit or provide inaccurate information to women carrying fetuses with abnormalities. The legislature successfully overrode all the vetoes except the insurance ban. The ultrasound law is not in effect yet, pending a court challenge.
2: The number of bills introduced this year that ban abortion before viability. Nebraska banned abortion for almost any reason after 20 weeks gestation based on the unsubstantiated and highly contested claim that fetuses can feel pain at that point. This law is clearly unconstitutional under current precedent and was passed in order to challenge Roe v. Wade. South Carolina introduced similar legislation but did not vote on it.*
1: The number of laws enacted this year (in Utah) that define criminal homicide to include a “knowing” act by a pregnant woman that causes a miscarriage or stillbirth. This bill is so broad that it could apply to a woman who smokes cigarettes or takes prescription medication.
While state legislators have been busy making abortion almost impossible to obtain for an untold number of women, they have done little to provide women with the support they need to carry their pregnancies to term, have childbirth options available to them, and raise the children they have. States are facing a budget shortfall of about $260 billion over the next two fiscal years, leading to unprecedented cuts to a variety of critical programs for vulnerable families and children, including public health programs and early childhood and K-12 education.
30: The number of states that have implemented budget cuts since 2008 that will restrict eligibility for public health insurance or reduce access to health care services among low-income children and families, including programs designed to improve maternal and child health outcomes. Many of these programs typically offer free or reduced-cost services such as pregnancy tests, prenatal care, post-partum care, and parenting classes. Alaska’s governor also recently vetoed a children’s health insurance program because a small portion might cover a handful of medically necessary abortions.
6: The number of states that have introduced legislation that would make many forms of midwifery a crime.
39: The number of states that have introduced legislation to limit or oppose the Patient Protection and Affordable Care Act. At least 22 states have thus far launched or joined litigation to challenge the PPACA.
In this time of economic turmoil, states should be working on ways to expand access to health care, spur job growth, reduce housing foreclosures, and repair our fraying safety net. Instead, they have chosen to waste valuable time and resources by passing laws of questionable constitutionality that punish women and make difficult circumstances even harder. It is time for states to get their priorities straight, stop using abortion as a political distraction, and start addressing the pressing needs of everyday Americans.
*Per conversations with the Guttmacher Institute, June 2010.
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Director, Women's Health & Rights Program
Alexandra Cawthorne Gaines
Vice President, Poverty to Prosperity