State Policymakers Work Toward and Against a Post-Roe Country
As of mid-February 2019, the federal government was grinding its gears slowly, with the executive branch still recovering after a record-long partial government shutdown and Congress scrambling to prevent another shutdown. Numerous attacks on sexual and reproductive health and rights were looming, including the expected imminent release of final regulations imposing a “domestic gag rule” on the Title X national family planning program.
Instead, for this month’s column, we will focus on policymaking at the state level. In 2018, for the first time in recent memory, the number of enacted state policies promoting sexual and reproductive health and rights outpaced the number of new restrictions. According to an analysis by my Guttmacher Institute colleagues, 29 states and the District of Columbia enacted 80 measures in 2018 that expanded access to abortion, contraception, testing and treatment for sexually transmitted infections (STIs), reproductive healthcare for minors, infertility coverage, and comprehensive sex education.1
For example, six states and DC reinforced or expanded their requirements regarding insurance coverage of contraception. New Jersey and Utah sought federal permission to expand Medicaid eligibility for family planning services to individuals otherwise ineligible for the program. On the abortion front, Massachusetts repealed two long-standing abortion restrictions, and Washington state expanded insurance coverage for reproductive healthcare, including a requirement that plans cover abortion if they also cover maternity care.
By contrast, 15 states adopted 23 new restrictions on abortion and four restrictions on family planning providers in 2018. This constituted the fewest new abortion restrictions in at least a decade. New abortion restrictions included an Iowa law banning abortion at six weeks after the patient’s last menstrual period (LMP), and laws in Louisiana and Mississippi banning abortion at 15 weeks after LMP. Because of court challenges, none of those laws are in effect.
Despite the overall trends for 2018, states have passed more than 400 abortion restrictions in just the past eight years. As of January 2019, 21 states can be considered hostile to abortion rights, while only four states can be considered supportive, according to a separate Guttmacher analysis that looked at six categories of restrictions and six categories of supportive policies.2 Only four states had passed enough restrictions to be considered hostile by these standards in 2000.
Enter Justice Kavanaugh
With the appointment of Brett Kavanaugh to the U.S. Supreme Court in October 2018, state policymakers have turned their focus to Roe v. Wade. Even before then, in anticipation of a conservative shift in the Supreme Court, anti-abortion policymakers have been enacting measures clearly intended to challenge Roe by banning abortion at early stages in pregnancy or policing the reasons patients seek abortion care. Just one month after Justice Kavanaugh’s appointment, voters in Alabama and West Virginia approved state constitutional amendments that could lead to outright bans on abortion if Roe is undermined or overturned.
Those attempts have continued in 2019, as new abortion restrictions cleared a legislative chamber in Kentucky, North Dakota, and Wyoming by the end of January.3 And those challenges have continued in the courts as well: On Feb. 7, the Supreme Court narrowly put off a potential challenge to its abortion rights precedents. In a 5-4 decision, it temporarily blocked a Louisiana restriction that is nearly identical to one in Texas that the Court struck down in 2016.4 If allowed to go into effect, that law could have left the state with just a single abortion provider. That case, and many others on abortion, still may come before the Court for a full hearing later in 2019 or beyond.
Meanwhile, lawmakers supportive of abortion rights are looking for opportunities to protect and expand those rights. Potential approaches that states have explored in recent years include constitutional or statutory provisions affirming and protecting the basic right to abortion; laws expanding Medicaid and private insurance coverage of abortion; and policies to expand the pool of abortion providers, such as by allowing advanced practice clinicians to provide first-trimester abortion.5
Notably, on the anniversary of the Roe decision in January 2019, New York enacted its Reproductive Health Act, repealing its unconstitutional and unenforceable pre-Roe laws.6 The new law codifies the right to abortion, as currently interpreted by the U.S. Supreme Court, allowing for abortion through fetal viability for any reason and allowing for abortion after fetal viability when the life or health of the woman is at risk. It also moves abortion out of the state’s penal code and into its public health code, which will prevent women from being prosecuted for abortion, and it allows advanced practice clinicians to offer abortion care. Predictably, anti-abortion activists and policymakers, including President Trump, vilified the new law as promoting infanticide, highlighting the challenges facing those supportive of abortion rights.7
REFERENCES
- Nash E, Gold RB, Ansari-Thomas Z, et al. State policy trends 2018: With Roe v. Wade in jeopardy, states continued to add new abortion restrictions. Guttmacher Institute, Dec. 11, 2018. Available at: https://bit.ly/2GKGTad. Accessed Feb. 20, 2019.
- Guttmacher Institute. State abortion policy landscape: From hostile to supportive. Dec. 11, 2018. Available at: https://bit.ly/2TRGw1d. Accessed Feb. 20, 2019.
- Guttmacher Institute. State policy updates: Major developments in sexual & reproductive health. Available at: https://bit.ly/2a5Qpq8. Accessed Feb. 20, 2019.
- Liptak A. Supreme Court blocks Louisiana abortion law. New York Times, Feb. 7, 2019. Available at: https://nyti.ms/2Gg9ZPg. Accessed Feb. 20, 2019.
- Nash E, Donovan MK. Ensuring access to abortion at the state level: Selected examples and lessons. Guttmacher Pol Rev 2019. Jan. 9, 2019. Available at: https://bit.ly/2SUSlmK. Accessed Feb. 20, 2019.
- Furneaux R. It took nearly 50 years, but New York finally just decriminalized abortion. Mother Jones Jan. 23, 2019. Available at: https://bit.ly/2R8ca8J. Accessed Feb. 20, 2019.
- Wang V. Trump, Pence lead G.O.P. seizure of late-term abortion as a potent 2020 issue. New York Times, Jan. 31, 2019. Available at: https://nyti.ms/2SYQFvS. Accessed Feb. 20, 2019.
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