The Trump administration and the anti-choice majority in Congress are relentlessly attacking women’s health and rights. These attacks have come in many forms—from multiple attempts to repeal the Affordable Care Act (ACA) and defund Planned Parenthood to cuts to teen pregnancy grants and, most recently, an interim final rule that eliminates the ACA’s guarantee of no-cost contraceptive coverage regardless of employer. This has meant that most of the attention given to reproductive rights has been focused on the national level. Yet states are experiencing significant policy changes as well, through both the legislatures and the courts.
Courts across the country have been busy considering numerous challenges to measures aimed at restricting women’s access to health care, and states have been playing a pivotal role in these battles. The Trump administration’s issuance of new interim final rules rolling back the Obama-era policy requiring employers to include contraception coverage in their health insurance plans has many people unsure about the future of birth control coverage.
On the same day that the rule was made public, California Attorney General Xavier Becerra (D) filed a lawsuit against the Trump administration arguing that employers have no right to control a woman’s family planning decisions. Because California is one of eight states that require employer-based health plans to provide free birth control, only employers with self-funded plans can now choose not to offer contraception. According to the California Health Care Foundation, an estimated 6.6 million people in California are covered by employer self-funded plans. Employers that have fully insured plans, which California regulates, will still have to comply with state law and provide contraception coverage. As of November 2, four other states—Delaware, Maryland, New York, and Virginia—had joined the lawsuit.
So while efforts to curtail access to comprehensive reproductive health care continue to move forward around the country, so too have proactive efforts to enhance and defend women’s health. This column looks at the regressive, dangerous actions some states have taken—and the progressive, proactive changes that other states are working to implement.
Regressive and dangerous actions
Too often, efforts to reduce access to reproductive health care services in some states serve as an impetus to implement similar restrictions in other states and at the federal level. It is therefore necessary to recognize and fight against these dangerous attacks on women’s health and rights whenever and wherever they appear.
Texas goes to court over abortion policy
Earlier this year, the Texas legislature passed Senate Bill 8, which seeks to restrict a commonly used abortion care procedure that can be provided after 12 weeks. Also known as dilation and evacuation, this procedure is completely safe when performed by a trained abortion care provider during the second trimester of a patient’s pregnancy. But by prohibiting a doctor’s ability to provide their best advice and recommend a specific health procedure to a patient, Texas’ law will restrict the general availability of abortion in the state.
Additionally, these types of bans disproportionately affect low-income and rural women, who may need more time to gather funds or plan travel logistics. Although the bill was intended to go into effect on September 1, a federal judge temporarily blocked its implementation in August. As of the publication of this column, the litigation was ongoing.
Longer waiting periods for abortion in Missouri
On October 24, a new requirement went into effect that risks causing further delays for women seeking an abortion in Missouri. The new rule requires the same physician who will be performing an abortion procedure to meet the state’s informed consent laws by providing the patient with materials that would unnecessarily prolong the counseling process. This could force a woman to wait weeks to get an abortion.
In the past, a woman could meet the requirements necessary for the informed consent laws at a facility near her home, then travel to a bigger city for the procedure. This meant that they could consult with different doctors or nurses if necessary to meet their geographic needs. Now, however, two trips to a faraway facility may be necessary, which can be highly unaffordable for those who already face challenges to accessing care, such as young people, people of color, people who live in rural areas, and people with low incomes. According to the Guttmacher Institute, “One in five women across the country would need to travel at least 43 miles to reach the nearest abortion clinic.” Other provisions that took effect on October 24 include a new law that allows the Missouri attorney general to prosecute violations of abortion laws, and a repeal of a St. Louis ordinance that bans employers and landlords from discriminating against women who have had an abortion, use contraceptives, or are pregnant.
Passage of ‘rape insurance’ legislation and increased reporting requirements in Texas
In a special legislative session that began on July 18, Texas Gov. Greg Abbott (R) announced the inclusion of three abortion-related items on his special session agenda this summer. He followed through on this promise on August 15, signing two anti-abortion bills into law. House Bill 214 bans abortion coverage in private health insurance plans, forcing women to pay an additional supplement if they want the procedure to be covered. It contains no exceptions for women who seek abortions after experiencing rape or incest, causing critics of the law to condemn it for forcing women to purchase “rape insurance.” After the law goes into effect on December 1, Texas will become the 11th state to restrict abortion coverage in private insurance plans.
The second bill, House Bill 13, expands medically unnecessary reporting mandates on physicians that also risk patients’ privacy. Under the bill, doctors must report complications from abortions within three days of diagnosis or treatment. They must also provide the patient’s birth year, county of residence, race, and marital status, as well as the date of the patient’s last menstrual cycle. Opponents of the law argue that it violates the privacy rights of doctors and patients, calling it “an attempt to intimidate abortion providers.”
Progressive and proactive changes
In addition to the numerous attacks on women’s health and rights detailed above, it is important to remember that other states are making progress in protecting women’s reproductive health services.
12 months of guaranteed contraception in Hawaii, Maine, and Nevada
While the Trump administration undermines the contraception mandate through the federal regulation of health insurance, Hawaii, Maine, and Nevada have all taken steps to protect women’s access to reproductive health services by requiring insurers to cover a 12-month supply of birth control at no out-of-pocket cost to the consumer. This greatly benefits women living in rural areas or those without access to transportation, factors that act as significant barriers to contraception access. In turn, a longer supply period decreases their risk of an unintended pregnancy, as there is less danger of missing a dosage.
Hawaii’s contraception coverage law is effective immediately, while Maine’s and Nevada’s are delayed, taking effect 90 days after the state legislature adjourns and on January 1, 2018, respectively. These three states join California, Oregon, Illinois, Vermont, and the District of Columbia in allowing up to 12 continuous months of contraception coverage at no cost to the consumer. They will be joined by Maryland, Oregon, and Washington in January 2018 and by Colorado, Maine, and Virginia in January 2019.
Medicaid funding for abortion in Illinois
On September 28, Illinois Gov. Bruce Rauner (R) signed legislation that allows state health insurance and Medicaid coverage for abortions. This marks a reversal from his stance on the proposal last spring. The law goes into effect immediately and removes language in Illinois law that would criminalize abortion if the 1973 Roe v. Wade U.S. Supreme Court decision is overturned at the federal level. Illinois is now one of 17 states that direct Medicaid to pay for all or most medically necessary abortions for women under Medicaid, and this legislation makes it the first state in decades to lift its restriction on Medicaid coverage of abortion.
Increased private insurance coverage of abortion in Oregon
On August 15, Oregon Gov. Kate Brown (D) signed the Reproductive Health Equity Act into state law. The law goes into effect immediately. Oregon joins California and New York as the third state to require private insurance coverage of abortion and is the first state to codify no-cost abortion coverage in state statute.
The law mandates that insurers cover abortion at no cost to the patient regardless of income, citizenship status, or gender identity by appropriating more than $10 million to cover the costs of an abortion procedure. However, the law does provide an exemption for plans purchased by religious employers. Oregon joins nine other states—California, Connecticut, Hawaii, Maine, Maryland, Washington, Maryland, Nevada, and Delaware—in protecting abortion rights even if Roe v. Wade is overturned at the federal level.
Planned Parenthood funding in Maryland
The first piece of federal legislation to defund Planned Parenthood was introduced in 2007, and attacks on the organization are not new. States continue to play a vital role in this fight, as they have the choice to grant further protections to the organization. Maryland’s protection of Planned Parenthood, for example, became law on July 1 and will stand even if the federal government decides to withdraw funding at some point in the future. If Congress blocks the organization from receiving federal funding, Maryland will cover the cost of Planned Parenthood’s health care services.
In this situation, Maryland will create a state family planning program to guarantee that current services provided under Title X of the federal Public Health Service Act continue to be offered throughout the state. This legislation will allow the organization to keep its doors open to provide services to almost 30,000 Maryland patients each year.
States play an integral role in determining health outcomes for women, as the status of services varies drastically based on a respective state’s legislation—from proactive protection to dangerous attacks. It is crucial that policymakers pay attention to what transpires at the state level to ensure that every woman has access to all aspects of health care, including reproductive health services such as maternity care, contraception, and abortion. With a great amount of uncertainty surrounding women’s health care access at the federal level, advocates and policymakers must offer proactive solutions to advance women’s health and rights at every level, including at the state level, to protect women’s right to affordable health care.
Shilpa Phadke is the senior director of the Women’s Initiative at the Center for American Progress. Nikita Mhatre is a former Women’s Health and Rights intern at the Center.
Vice President, Women's Initiative