War on Women's Reproductive Rights Escalates in the States
August 29, 2013
An all-out assault on women's reproductive health and rights continues in many state legislatures -- a stark reminder that elections have consequences. The disastrous 2010 elections saw Tea Party extremists flooding into state legislatures (as well as the U.S. Congress), and although they campaigned on economic issues, once in office their first order of business was to begin blocking women's access to abortion care, birth control, and other family planning services. In addition, they strategically used the redistricting process following the 2010 Census to help more extremists grab control of 26 state legislatures and 30 governorships. The result has been an avalanche of abortion restrictions, among other regressive initiatives.
According to the Guttmacher Institute, in the first six months of this year bills containing hundreds of anti-reproductive rights provisions -- were introduced. Thus far in 2012, 43 restrictions on access to abortion have been passed -- the second-highest number ever passed at the midyear mark, and roughly the same number as were passed in all of 2012. (Only 2011 was worse; by mid-year that year, 80 anti-choice restrictions had been enacted.)
A few examples from a long list of restrictions adopted during recent legislation sessions, compiled by the Guttmacher Institute:
It is a chilling fact that 55 percent of women of reproductive age in the U.S. live in one of the 26 states considered hostile to abortion rights. In 2000, the pattern was dramatically different: then, only one-third of women lived in hostile states, while another third lived in states that were generally supportive of reproductive rights.
But unlike in past years when legislative activity was aimed at regulating the delivery of abortion services, several states have turned toward banning abortion outright. Bans on abortion before viability, in clear violation of Roe v. Wade, have been enacted in 11 states., including Alabama, Arkansas, Arizona, Indiana, Idaho, Kansas, Louisiana, Nebraska, North Carolina and North Dakota. These laws are designed give the U.S. Supreme Court, which is now dominated by justices with a right-wing political agenda, the opportunity to overturn Roe v. Wade altogether. Cases from several of these states are now wending their way through the federal courts.
Alabama, Indiana, Louisiana, Oklahoma, and Mississippihave all enacted measures directly or indirectly banning the use of telemedicine for medication abortions (RU-486). Telemedicine has rapidly become a widely used tool for expanding access to health care, particularly in rural areas, and this prohibition -- for which there is no medical justification -- presents a significant setback. This brings the number of states that prohibit the use of telemedicine for this procedure to 12, although enforcement of the provision in Wisconsin has been enjoined by a state court.
Alaska Gov. Sean Parnell ( R ) signed a budget bill that curtails state funding for abortions under the joint state-federal funding for Medicaid. The new restriction will limit Medicaid funding for abortion to cases of rape, incest or life endangerment, and leaves women whose pregnancies threaten their health without protection. At the moment, Alaska is under a court order — superceding that provision in the budget — and must fund all medically necessary abortions.
Maryland Gov. Martin O'Malley (D) approved an appropriations measure that renews current restrictions limiting public funding of abortion to case of incest, rape, life or health endangerment, and fetal impairment.
In Iowa, the governor must now approve reimbursements for Medicaid-eligible abortions; Gov. Terry Branstad ( R ) signed a budget bill that enacts this new requirement.
To date, 22 states have moved to restrict private insurance coverage for abortions, including coverage provided in health exchanges under the Affordable Care Act. Even when exceptions are recognized for cases of rape, incest and to protect the pregnant woman's health or life, the exceptions are often very narrowly defined. North Carolina, Pennsylvania. Arkansas and Virginia have already enacted these restrictions. Other states such as Georgia and South Carolina would limit state employee's access to insurance for abortion. Kansas Gov. Sam Brownback ( R ) signed an omnibus bill in April that prohibits individuals from claiming a tax credit for health insurance premiums that include abortion coverage.
These laws are designed to shut down family planning clinics that offer abortion care by imposing so many medically unnecessary requirements that the clinics cannot afford to remain in business.
The enforcement of a very severe Mississippi law is currently enjoined as a constitutional challenge to it moves through the courts. The law aims to shutter the state's sole abortion clinic by requiring abortion providers to have admitting privileges at a local hospital -- even though all local hospitals announced they would refuse privileges to any doctor, no matter how skilled or highly regarded, who offers abortion care to her/his patients. Similar provisions in Alabama, North Dakota and Wisconsin have also been enjoined by federal courts; in all cases, the courts ruled that the law would likely be found to impose an "undue burden" on a woman's basic right to obtain safe, medically appropriate abortion care.
Ohio has long required abortion providers to have an agreement with a hospital allowing them to transfer patients needing emergency care. In June, Ohio adopted a new provision prohibiting public hospitals in the state from entering into these transfer agreements, in an effort to force clinics to shut down. The provision affects hospitals that are operated by the state or a city or county, including state university hospitals.
Indiana, which had already required sites where surgical abortion was performed to adhere to standards similar to those for ambulatory surgical centers (ASCs), extended these requirements to apply even to sites where no surgical abortions, but only medication abortions, are performed.
Virginia, meanwhile, finalized regulations to implement its 2011 TRAP law that requires clinics to meet stringent standards equivalent to those for ASCs. This has caused NOVA Women's Healthcare, the state's busiest abortion clinic, to close because it could not afford to make the changes needed to comply with this legislation.
North Carolina: Gov. Pat McCrory ( R ) signed a number of new abortion restrictions into law, including a provision directing state officials to regulate abortion clinics like surgical centers. Republicans, who control the legislature but wanted to avoid public debate and deliberation on this bill, attached it at the eleventh hour to a motorcycle safety bill. If it withstands court challenge, the new law will close nearly all of the state's women's health centers.
McCrory's action was met with outrage by the pro-choice community. Dozens of protesters held a 12-hour vigil outside the governor's mansion reminding him that he had campaigned as a "moderate Republican," and when he signed the bill, the protesters returned dressed in Mad Men-style shirtdresses and old-fashioned lace gloves to emphasize the law's regressive thrust. In a nod to the motorcycle safety bill that contained the restrictions, motorcyclists circled the mansion. McCrory offered them a plate of cookies, which were promptly returned with a note saying "We want women's health care, not cookies."
The effort to make abortion more costly and cumbersome has continued, with Indiana, Kansas, Kentucky, Ohio, and South Dakota enforcing more stringent counseling and waiting periods. For example, in Kansas, Planned Parenthood has sued the state over a law that violates doctors' free speech rights, requiring them to inform women seeking abortions that they are ending the life of a "whole, separate, unique, living human being." Ohio's bill would require providers to falsely inform patients that the abortion would increase their risk of breast cancer (a claim that has been soundly rejected by medical experts).
Wisconsin's Republican-led State Assembly passed a mandatory ultrasound bill in early June which requires the provider to administer an ultrasound whether it is medically indicated or not, and give the pregnant woman images, a description of the fetus and a visualization of a fetal heartbeat before providing the abortion. Republican Gov. Scott Walker signed the bill, but a court has temporarily blocked enforcement. A similar mandatory ultrasound bill has been introduced in Ohio, and this one (unlike Wisconsin's) requires nonconsensual transvaginal ultrasounds, which many have rightly characterized as state-sponsored rape, for early-term abortions. The abortion provider would have to describe to women "all relevant features" of the fetus visible in an ultrasound image. Indiana, Kentucky, and Ohio are considering similar legislation.
A new tactic is legislation that shields medical professionals from liability for misleading women about their pregnancies or their health status in order to dissuade or prevent them from choosing abortion. In Kansas, such a law went into effect in July, while in Montana, Gov. Steve Bullock ( D ) allowed a similar bill to go into effect in October without his signature.
Numerous states are considering allocating large sums of money to inform women that childbirth and adoption are alternatives to abortion. These measures not only insult women's intelligence, but also funnel tax dollars to the self-styled educators, from the $700,000 that has been proposed in Michigan to the $5 million awaiting action by Texas Gov. Rick Perry. Missouri and Ohio have similar pending legislation.
Legislation requiring greater involvement of parents of minors when they are seeking abortion has continued and been enacted in Arkansas, Montana, and Oklahoma. These laws include provisions such as requiring a parent to provide a government-issued identification and prove parental status via "written documentation", leaving appeals to judges as the only way to seek an abortion in many cases. The Oklahoma law establishes a process that a judge needs to follow when considering whether a waiver of notification will be issued. The Arkansas law also requires reproductive health clinics to report child sexual abuse and preserve fetal tissue when minors younger than 14 have an abortion.
After a decades-long struggle, the Illinois Supreme Court has upheld a 1995 law requiring a parent be notified before a minor obtains an abortion. It is scheduled to take effect this month.
Ohio and Oklahoma moved to bar family planning providers from receiving funding that flows through the states' treasuries. These clinics provide a range of basic reproductive health services, including mammograms, cervical cancer screenings, birth control and STD/HIV screening. Oklahoma's budget excludes family planning providers from state funds along with Title X dollars or federal maternal and child health or social services block grant funds. Ohio established a priority system for allocating state or federal funds (including Title X dollars) that puts family planning providers at the end of a long list that includes health departments and community health centers. These moves continue a disturbing trend that began in 2011.
The list of additional enacted provisions by state legislatures is long: some 110 by the end of July. Most are restrictive in nature. They include dozens of bills passed in such categories as prohibiting coercing a woman into having an abortion, prohibiting race and sex selection, prohibiting state employee and facility participation in abortion, restricting access to emergency contraception, pharmacy or pharmacist requirements to dispense contraception, and substance abuse during pregnancy, among many others. For a more comprehensive summary of new provisions, see http://www.guttmacher.org/sections/by-type.php?type=spib
(Please note: Since many of these restrictive measures have been challenged, recent court actions may have enjoined or struck down the laws.)
At the federal level, only one restrictive bill has been voted on by the House, but will likely not be taken up by the Senate. Passed by the House (228-196) on June 18, the Pain-Capable Unborn Child Protection Act (H.R. 1797) directly contravenes Roe v. Wade by banning all abortions before viability, at 20 weeks gestation, with only narrow exceptions in cases of officially reported rape or incest, and no protection for pregnant women's health. The bill, which recites the scientifically baseless claim that first and second trimester fetuses feel pain, was introduced by Rep. Trent Franks (R-Ariz.) and was co-sponsored by 184 members of the House that included both Republicans and a few Democrats.
President Obama has threatened to veto the bill if it makes it to his desk, but it is unlikely that the bill will be taken up in the Democrat-controlled Senate. Legislation very similar to this bill is pending in the Republican-dominated legislatures in both South Carolina and Wisconsin.
The New York Times reports that a group of Republican senators, including Marco Rubio (Fla.), Ted Cruz (Tex.) and Rob Portland (Ohio), plan to bring up a 20-week abortion ban bill when the Senate reconvenes following the Labor Day recess. Because abortions at 20 weeks are extremely rare, poorly understood and easily demonized, these Republican men are eager to advance their careers on the issue. The strategy involves tacking the bill onto a must-pass large spending bill; however, some observers believe that the Senate will reject the measure. President Obama has already threatened a veto.
Insiders note that several of the Republican senators pushing this bill are rumored to be potential presidential candidates in 2016. At the same time, a vote against the legislation could harm certain Democratic incumbents in Louisiana, North Carolina and Arkansas where state legislators have recently passed restrictive abortion bills.
Gaining national and even international attention through social media, Texas State Sen. Wendy Davis carried out an 11-hour filibuster on the floor of the Texas Senate to defeat Senate Bill 5, an omnibus anti-reproductive health bill that included an unconstitutional abortion ban at 20 weeks (pre-viability, in violation of Roe v. Wade), restrictions on medical abortion (RU-486) and TRAP regulations designed to shut down 37 of the state's 42 family planning clinics that provide abortion care. Unable to stop Sen. Davis from filibustering to the end of the session, Senate Republican leaders violated their own rules by interrupting her and simply calling for a vote. When that didn't work they tried to stop the legislative clock from running out. Their gambits failed; three hours after the end of the legislative session they were forced to concede that Sen. Davis' filibuster had prevailed. Our side's victory was short-lived, however. Gov. Rick Perry immediately called an unprecedented second special legislative session for the sole purpose of enacting the anti-choice bills. He signed them into law on June 18.
Davis, who has become a hero to many advocates of women's rights and health, is said to be considering a run for governor. Perry has announced he will not seek a fourth term as governor and is considering a run for president.
In Colorado in May, the legislature amended a statute that criminalizes assault on a pregnant woman by including penalties for causing the pregnant woman to miscarry, with exceptions for medical treatment and actions by the pregnant woman. The bill would also repeal the state's pre-Roe abortion restriction. The bill is awaiting action by Democratic Gov. John Hickenlooper. Colorado has also recently passed a measure that effectively ends abstinence-only sex education, replacing it with comprehensive sex ed that has been scientifically shown to be effective. Illinois has enacted similar legislation.
Hawaii enacted a measure requiring hospitals to provide survivors of sexual assault with medically accurate and unbiased information on emergency contraception, and to give them the medication upon request. Hawaii is the 17th state, along with the District of Columbia, to require that a woman be given information about emergency contraception and the 13th state (including the District of Columbia) to require that she be given the medication on request.
New Hampshire's budget reversed the 57% cut in family planning funding adopted in 2011, restoring funds to their previous level. Federal courts, meanwhile, sided with the Obama administration and blocked provisions adopted in Arizona and Indiana that would have excluded family planning providers that had any association with abortion from being able to participate in the Medicaid program.
Some additional good news is the ruling from the U.S. Court of Appeals for the Ninth Circuit which struck down a 2012 Arizona law that would have banned abortion at 18 weeks gestation except when the procedure was necessary to protect the woman's life or prevent "substantial and irreversible impairment" to her health. The court told Arizona that the state may not prevent a woman from terminating a pregnancy prior to viability.
For activists who want up-to-date information on a continuing basis of what is happening in state legislatures and in Congress related to women's health and reproductive rights, here is a valuable list of resources:
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