Expanding Access and Protections in States Where Abortion Is Legal
Expanding Access and Protections in States Where Abortion Is Legal
Abortion is protected by state law in more than 20 states, many of which have expanded access to abortion by making it more affordable, codifying state-level reproductive rights, broadening the types of providers able to offer care, and protecting abortion providers and access to clinics.
What you should know
On June 24, 2022, the U.S. Supreme Court overturned 50 years of precedent, overruling Roe v. Wade and Planned Parenthood v. Casey.
Despite a slew of hostile abortion bans and restrictions across the nation, some states are expanding and strengthening protections for abortion.
As of publication, 21 states and Washington, D.C., have laws that keep abortion legal in lieu of federal regulation.
As of publication, 25 states are hostile to abortion: Eight states have total abortion bans; another nine states have total bans that are expected or are temporarily blocked; and eight more states severely restrict abortion by gestational limits.
For nearly 50 years, the U.S. Supreme Court upheld the fundamental right to privacy through its 1973 landmark decision in Roe v. Wade and affirmed an individual’s right to safe and legal abortion. On June 24, 2022, in Dobbs v. Jackson Women’s Health Organization, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett denied that critical right to bodily autonomy, overturning Roe and allowing numerous cruel and restrictive abortion bans across the United States to take effect.
Now, more than half of states have already banned or are poised to ban abortion, which would leave 34 million women of reproductive age facing the loss of their reproductive freedoms. Furthermore, many states advancing abortion restrictions are heavily concentrated in the southeast and central United States, where a significant proportion of Black, Indigenous, and other people of color live—who are disproportionately more likely to need abortion care— further interrupting essential and lifesaving care.
Learn more about states' efforts to restrict abortion access
Some States Are Ready To Punish Abortion in a Post-Roe World
In the face of these increasingly harsh abortion restrictions, 10 states with existing rights to abortion have expanded access through additional laws or policies. As of July 2022, 21 states and Washington, D.C., have protections in place for abortion.
This article provides an overview of the protective actions that states have taken to preserve the right to affordable, accessible abortion at the state level. It is more important than ever for states to move swiftly to protect abortion rights and reproductive health care in general; state policymakers can make a significant difference in what happens to abortion access for the people they serve. And although these states are making great progress to protect abortion, increased need for care across the country may pose additional challenges to states’ health care systems and abortion care providers: As some states’ abortion restrictions go into effect following the overturning of Roe, only a few other states scramble to provide services for residents traveling from those states with bans—and pick up the pieces of a crumbling political system in which true reproductive justice has never been realized for everyone equally.
Some states have signed into law policies that strengthen or expand access to abortion, while others have prohibited preexisting restrictions and repealed barriers to abortion care and services. This article highlights four categories of laws enacted since the beginning of 2022: 1) making abortion more affordable, 2) protecting state-level reproductive rights, 3) expanding the types of authorized providers able to offer care, and 4) protecting abortion providers and safe access to care and clinics.
Making abortion more affordable
Research demonstrates that the majority of women who seek abortions are low-income and already have one or more children. Further, one of the most-cited reasons for seeking an abortion is financial concerns, including, but not limited to, low monthly income, insufficient or no health insurance, and/or the inability to receive government assistance. Not being able to receive an abortion can exacerbate existing financial hardships and disrupt people’s lives. Additionally, the University of California, San Francisco, Bixby Center’s 2014 Turnaway Study, the first longitudinal study to assess the impacts of being denied an abortion, indicates that more than half of people seeking an abortion experienced delays in procedure because they needed time to raise funds, indicating that financial issues are a critical barrier to an often time-sensitive and significant need. And unfortunately, this financial strain will disproportionately affect low-income women of color, and specifically Black women, who are more likely to rely on government insurance such as Medicaid as their primary health coverage. The federal Hyde Amendment further obstructs access to abortion care services, as it restricts states from using federal funds to cover abortion care.
History of the Hyde Amendment
The Hyde Amendment prohibits federal funds from being used to cover abortion care services, meaning people insured through Medicaid or Medicare are restricted from using their health insurance to pay for services. It also prohibits abortions for those in the military and Peace Corps, as well as those employed by the federal government, with only a few exceptions when pregnancy is due to rape, incest, or endangerment to the pregnant person’s life. Over the years, research has shown that the Hyde Amendment is discriminatory toward low-income people and people of color, but this research has not yielded any policy changes. Notably, Supreme Court justices have filed dissenting opinions stating that the Hyde Amendment is a violation of constitutional rights and discriminatory against marginalized groups. For example, in his dissenting opinion in Harris v. McRae, Justice Thurgood Marshall stated that Hyde was “designed to deprive poor and minority women of the constitutional right to choose abortion.”
In the face of rising abortion costs, states are looking to make abortion more affordable and curb out-of-pocket costs. Several states have enacted affordability measures to remove financial barriers that often stand in the way of people seeking care or receiving timely care. These include lowering out-of-pocket costs through removing cost-sharing requirements and establishing abortion funds and incorporating them into the state budget.
In March 2022, California Gov. Gavin Newsom (D) signed S.B. 245, the Abortion Accessibility Act, into law. Under this state law, health care service plans cannot impose cost-sharing requirements, such as deductibles, coinsurance, or copayments, on abortion or abortion-related services. The law goes into effect in January 2023. New York and Maryland signed similar bills into law. The Maryland General Assembly passed H.B. 937, the Abortion Care Access Act, which requires insurance carriers that provide labor and delivery coverage to also cover abortion care services and prohibits cost sharing. A carrier must also explicitly refer to services as “abortion care services.” Insurance-related amendments go into effect in January 2023. New York had already enacted cost-sharing requirements in previous years for “medically necessary” abortion care, and New York Gov. Kathy Hochul (D) signed the state’s health and mental hygiene budget in March 2022, requiring that all New York insurers cover abortion services without cost sharing. The budget goes into effect in January 2023.
Additionally, some states have established or allocated funds specifically to cover abortion care services. In March 2022, Oregon Gov. Kate Brown (D) established a $15 million reproductive health equity fund through H.B. 5202. The funds will cover supports such as travel and lodging for patients and expand provider network capacity. Seeding Justice, a grant-making organization that funds grassroots social justice organizations and movements, is responsible for administering the funds. New York allocated $35 million from the health commissioner’s emergency fund, with $25 million to expand provider capacity and increase access to abortion and $10 million to enhance safety measures for abortion facilities.
After the Supreme Court decision in Dobbs, Washington Gov. Jay Inslee (D) announced $1 million in emergency funds for reproductive care clinics in the state. This announcement came alongside a larger multistate commitment by California, Oregon, and Washington to protect people seeking abortion care in those states.
Protecting state-level reproductive rights
Some states have enacted statutory protections for abortion and other forms of reproductive health care; meanwhile, others are looking to codify these rights through state constitutional amendments.
In January 2022, New Jersey passed Bill S49/A6260, the Freedom of Reproductive Choice Act, removing significant barriers to abortion and repealing outdated and pre-Roe laws. The law specifically covers contraception, including emergency contraception, access to public benefits, the choice to terminate a pregnancy, and the choice to carry a pregnancy to term.
Bolstering discrimination protections in reproductive health care
Amid a slew of anti-LGBTQI+ legislation, some states have enacted or amended statutory language to existing laws to explicitly state that people of all genders are protected under the law when accessing reproductive health care. Research demonstrates that LGBTQ+ people experience heightened barriers to adequate, comprehensive, and affordable care, including reproductive health care such as abortion and fertility treatments. Inclusive statutory language, paired with nondiscrimination protections for health care more generally, can help prevent misinterpretations by providers and insurers that result in barriers to care. But to be clear, statutory protections that use the phrasing of “women” should not preclude people of all gender identities who can become pregnant from receiving comprehensive, affordable reproductive care services.
And while abortion access is the focus of this article, the new protections for individuals’ right to carry a pregnancy to term are also important to recognize. Far too often, particularly among disabled people in addition to the LGBTQI+ community, individuals are prevented from being able to have much-desired children.
All people deserve to have their bodily rights protected and the ability to decide how, when, or if to become parents.
Additionally, in April 2022, Colorado Gov. Jared Polis (D) signed H.B. 1279, the Reproductive Health Equity Act, to guarantee the right to abortion without exceptions. Notably, the bill declares that “every pregnant individual has a fundamental right to continue the pregnancy and give birth or to have an abortion; and a fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of the state.”
Some states are taking it a step further and have moved to include abortion protections in the states’ constitutions, making it increasingly more difficult to remove those constitutional rights, even with future changes in party majority.
Vermont and California have also proposed amendments to make reproductive choice and the right to abortion part of their state constitutions, regardless of federal statute. Vermonters will vote on Proposition 5, the “Right to Personal Reproductive Autonomy Amendment,” in the November 2022 ballot. In early May, California Gov. Newsom also proposed an amendment to the state’s constitution to include the right to abortion.
Expanding the types of authorized providers
States have also continued work to expand the categories of providers authorized to offer abortion care. As part of H.B. 937, Maryland expanded the types of health care professionals that can provide abortion care and set up a program that aims to train and diversify the pool of qualified abortion providers. This bill includes a multipronged approach to expand the number of professionals who can provide abortion, including nurse practitioners, nurse midwives, licensed certified midwives, and physician assistants. It also allocates $3.5 million in the annual budget for the Abortion Care Clinical Training Program, which is used to train clinical professionals on abortion care services, so that participating clinical care teams can increase the number of qualified professionals. Grant funds may be administered to qualified provider sites that “focus on the provision of culturally congruent care and include implicit bias training,” and funds may be used to support “increas[ing] the racial and ethnic diversity among health care professionals with abortion care training,” among other standards. The bill went into effect in July 2022; however, the training program will not go into effect until July 2023 because current Maryland Gov. Larry Hogan (R) refused to fund the bill in the current fiscal year.
Similarly, Washington’s H.B. 1851 expanded the definition of who can provide an abortion to include physician, physician assistant, advanced registered nurse practitioner, or other health care providers acting within the provider’s scope of practice. Delaware also expanded the types of professionals who can prescribe medication abortion specifically, via H.B. 320: Physicians assistants and advanced practiced registered nurses are now eligible to prescribe medication for the termination of pregnancy.
Protecting abortion providers and safe access to care and clinics
As opponents of abortion seem poised to try to both track and prevent patients from traveling to obtain care, proactive work is critical. Recognizing this, a wave of state attorneys general supportive of abortion have announced their intention not to cooperate with other states’ efforts to criminalize those providing as well as seeking care. Immediately after the overturn of Roe v. Wade, Minnesota Gov. Tim Walz (D) signed an executive order aimed at protecting women coming to the state for abortion services where abortion remains legal.
Earlier in the year, Connecticut Gov. Ned Lamont (D) also signed into law H.B. 5414, An Act Concerning Protections for Persons Receiving and Providing Reproductive Health Care Services in the State, which aims to protect professionals who provide an abortion or receive support to obtain the procedure in Connecticut and are then sued in another state. This bill protects both abortion providers and people who may need to travel to the state for abortion services. It went into effect in July 2022.
These types of protective laws are more crucial than ever, as these sanctuary states will no doubt see an influx of people seeking abortion care from other states. As mentioned above, West Coast states California, Oregon, and Washington have already made it clear they will protect abortion rights for their residents as well as for people traveling into the state for safe, legal abortion.
Additionally, one state so far has passed clinic access protections. In April, Maine Gov. Janet Mills (D) signed into law legislation that establishes an 8-foot buffer zone around buildings where patients receive health services, which includes abortion care facilities. It prohibits individuals from interfering with or obstructing access to the entrances as well as harassment when entering the facility. The law went into effect in July 2022.
The Supreme Court’s decision to overturn Roe v. Wade will continue to have devastating impacts on individuals’ access to abortion, and these impacts will disproportionately be felt by low-income people and people of color—particularly in states that have restricted or banned, or are poised to severely restrict or ban, abortion access. Research also suggests that overturning Roe could have incredibly damaging effects on other freedoms that are protected and enforced under Roe, such as the right to family-related decisions such as marriage and contraceptive use. Justice Clarence Thomas has stated as much in his concurring opinion, in which he stated he believes that the justices should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”—the cases that protected the right to obtain contraception, legalized same-sex relationships, and determined marriage equality, respectively.
Lastly, although these states are becoming known as “sanctuary states,” it is important to recognize that even within these states, abortion access could become more difficult with increased demand, inadequate funds, and an insufficient number of abortion providers. As many states continue to introduce and enforce increasingly extreme and cruel abortion laws, many others can continue to expand and strengthen reproductive health and family planning protections statewide.
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Kierra B. Jones
The Women’s Initiative develops robust, progressive policies and solutions to ensure all women can participate in the economy and live healthy, productive lives.