Policy Trends in the States, 2017

States continued their assault on abortion in 2017, with 19 states adopting 63 new restrictions on abortion rights and access. That total is the largest number of abortion restrictions enacted in a year since 2013. In addition, Iowa, Kentucky and South Carolina all moved to restrict public funding for family planning programs and providers in 2017, bringing to 15 the number of states that have taken aim at the family planning safety net since the 2015 release of a series of deceptively edited videos seeking to discredit Planned Parenthood.

Even as the assault on sexual and reproductive health and rights continued, 2017 may be most notable for a dramatic upsurge in proactive efforts to expand access to abortion, contraception, other reproductive health services and comprehensive sex education or to protect reproductive rights. During the year, 21 states adopted 58 new proactive measures, a sharp increase from the 28 enacted in 2016. The new measures adopted in 2017 include 12 on abortion, 35 on contraception and 11 on issues such as sex education.

Restricting Abortion Access

Including those adopted in 2017, states have enacted 401 abortion restrictions since January 2011. The last seven years account for 34% of the 1,193 abortion restrictions enacted by states since the 1973 U.S. Supreme Court decision legalizing abortion in Roe v. Wade. After new restrictions enacted in 2017, 29 states have adopted enough abortion restrictions to be considered either hostile (6 states) or extremely hostile (23 states) to abortion rights, with Iowa and West Virginia entering the hostile group for the first time.[1] With the addition of these new states, 58% of American women of reproductive age lived in a state considered either hostile or extremely hostile to abortion rights in 2017. Only 30% of women lived in a state supportive of abortion rights.

Against a national backdrop of policymaking that often appears to willfully ignore clear and compelling data, it is important to note that 17 states have laws on abortion that match at least five of 10 major categories of restrictions that conflict with scientific evidence.[2] Kansas, South Dakota and Texas top the list with restrictions in eight of these categories; Louisiana and Oklahoma each have seven. An additional 12 states have 2–4 of these types of restrictions, and so are considered in moderate conflict with the science (see Flouting the Facts: State Abortion Restrictions Flying in the Face of Science). Only 21 states have laws that pose no or limited conflicts with scientific evidence.

Moves to ban some or all abortions garnered significant legislative attention in 2017. Over the course of the year, legislators in 30 states introduced abortion bans, with six states enacting new laws. Iowa and Kentucky adopted measures to ban abortion at 20 weeks postfertilization (equivalent to 22 weeks after a woman’s last menstrual period); by year’s end, 18 states had such bans in effect (see State Policies on Later Abortion). In addition, Tennessee enacted a law that bans abortion after viability except when the woman’s life is endangered or if there is "substantial and irreversible impairment of a major bodily function." Arkansas and Texas banned the use of dilation and evacuation (D&E), a common and medically proven method of abortion used after 12 weeks of pregnancy; neither law is in effect because of pending litigation. Out of the eight laws that have been enacted seeking to ban D&E abortions, only those in Mississippi and West Virginia are in effect (see Bans on Specific Abortion Methods Used After the First Trimester). Arkansas also banned abortion for purposes of gender selection. Currently seven states have such bans in effect; the Arkansas measure takes effect in 2018 (see Abortion Bans in Cases of Sex or Race Selection or Genetic Anomaly). Finally, Ohio enacted a law that bans abortion when a fetus has or is suspected of having Down syndrome; the new ban takes effect in 2018. Currently only North Dakota has a law in effect that bans abortion on the basis of fetal genetic anomaly.

In addition, states adopted a wide range of other abortion restrictions:

• Counseling and waiting periods. Three states enacted new abortion counseling requirements. Iowa established counseling requirements for a woman seeking an abortion; the state also requires a 72-hour waiting period between the counseling session and the procedure, although that provision is not in effect pending a legal challenge. Kansas now requires abortion counseling to include information on the provider’s qualifications, and Utah requires counseling on the potential to "reverse" a medication abortion before completion of the two-drug regimen. A total of 29 states impose specific abortion counseling requirements that go beyond what is necessary for informed consent (see Counseling and Waiting Periods for Abortion).
• Ultrasound. Three states imposed requirements on ultrasound provision before an abortion. Iowa and Kentucky enacted laws mandating an ultrasound before a patient receives an abortion; the Kentucky law is not in effect pending the outcome of litigation. Wyoming adopted a provision requiring that providers offer women seeking an abortion the option to have an ultrasound and listen to the fetal heartbeat. A total of 26 states require the use of ultrasound for abortion services (see Requirements for Ultrasound).
• Targeted regulation of abortion providers. Arkansas, Missouri and Texas enacted laws regulating abortion facilities. All three include provisions for the disposal of aborted tissue, although the measure in Arkansas is not in effect pending a legal challenge. Arkansas and Missouri also imposed unannounced annual inspections of abortion facilities. Another provision in Arkansas allows the health department to close an abortion clinic for any violation of the law. In addition, Missouri enacted a measure that requires abortion providers to obtain approval from the state health department for a plan to address any health complications that patients might experience following a medication abortion (see Targeted Regulation of Abortion Providers).
• Minors’ access to abortion. New laws in Indiana and Louisiana require a parent to provide identification and proof of parenthood before a minor may obtain an abortion; the Indiana law also allows a judge to notify the parent of a scheduled hearing on a minor’s petition to waive parental consent. (The Indiana law is not in effect pending the outcome of a court case.) West Virginia repealed a provision that had allowed a provider to waive the parental notification requirement (see Parental Involvement in Minors’ Abortions).
• Medication abortion. West Virginia banned the use of telemedicine for medication abortion. A total of 19 states require that the clinician providing medication abortion be physically present with the patient, prohibiting any use of telemedicine (see Medication Abortion).
• Personhood. The Alabama legislature approved a statewide ballot initiative for November 2018 on the question of whether to grant personhood at conception.
• Access to pregnancy information. Arkansas and Texas enacted new laws allowing health care providers to withhold information about a woman’s pregnancy to prevent her from potentially obtaining an abortion.

However, as new restrictions were becoming law across the country, governors in three states vetoed abortion restrictions. Minnesota Gov. Mark Dayton (D) vetoed legislation that would have imposed unnecessary and burdensome regulations on abortion clinics. Gov. Dayton also vetoed a bill intended to limit Medicaid reimbursement for abortion to cases of life endangerment, rape or incest (currently the state is court ordered to pay for all medically necessary abortions for Medicaid enrollees). Montana Gov. Steve Bullock (D) vetoed a ban on abortion at 20 weeks postfertilization and a restriction on postviability abortions. In December, Pennsylvania Gov. Tom Wolf (D) vetoed a measure that would have banned abortion at 20 weeks postfertilization, banned use of the D&E abortion method and required in-person abortion counseling (thereby requiring a patient to make two trips, one for the counseling session and one for the abortion procedure).

Restricting Family Planning Programs and Providers

Both at the federal level and in state capitals, providers of publicly funded family planning services are under assault from policymakers motivated by efforts to shut out providers associated with abortion, especially those affiliated with Planned Parenthood. In 2017, four states found ways to limit certain family planning providers’ eligibility for reimbursement under Medicaid, the federal-state program that contributes 75% of all public funds spent on family planning services nationwide (see Public Funding for Family Planning and Abortion Services, FY 1980–2015).

• Iowa and Missouri both ended their joint federal-state Medicaid programs that expanded eligibility specifically for family planning services to individuals otherwise ineligible for "full-benefit" Medicaid health insurance coverage. Instead, both states implemented entirely state-funded efforts through which they could exclude Planned Parenthood and other family planning providers based solely on the fact that they also offer abortion services.
• Those two states were following the lead of Texas, which enacted a similar plan in 2012. In 2017, Texas asked the Trump administration to reinstate federal funding for its alternate state program as is (excluding abortion providers and affiliates); that request is still pending (see At It Again: Texas Continues to Undercut Access to Reproductive Health Care).
• South Carolina Gov. Henry McMaster issued an executive order to exclude abortion providers from the state’s full-benefit Medicaid program, rather than solely its Medicaid family planning expansion (the governor’s order has not yet been implemented).

Including these states, nine states have taken steps to exclude abortion providers from either their full-benefit Medicaid programs or Medicaid family planning expansions since 2011. Arkansas is the only one among these states so far to fully implement a restriction specific to the joint federal-state Medicaid program.

In 2017, three states imposed new restrictions on certain family planning providers’ participation in publicly funded programs beyond Medicaid. Kentucky and South Carolina established an allocation system for distributing family planning funding that disadvantages private providers that focus on reproductive health services; sites operated by health departments and federally qualified health centers receive higher priority. (For the second year in a row, Virginia Gov. Terry McAuliffe vetoed a measure that would have established a similar allocation system.) Arizona now requires the state to compete for funding under the Title X national family planning program; if that application is successful, the state would bar funding for private providers that focus on reproductive health services.

Proactive Efforts to Protect Reproductive Rights or Expand Access to Services

Twenty-one states adopted proactive measures to expand access to reproductive health services or to protect reproductive rights in 2017; notably, this total includes some measures related to abortion, in addition to contraception or other topics. Proactive measures were enacted in states in all regions of the country. Five of these states are considered extremely hostile to abortion rights (Arizona, Indiana, Ohio, South Dakota and Virginia) and three states (Georgia, Idaho and Rhode Island) each have enough abortion restrictions to be hostile to abortion rights. Altogether, 32% of women of reproductive age lived in a state that adopted at least one proactive measure in 2017.

Five states moved to either protect abortion rights or expand access to abortion services:

• Delaware adopted a sweeping measure that affirms a woman’s right to abortion until viability or when an abortion is necessary to protect her life or health. Including Delaware, eight states have a similar provision protecting reproductive rights (see Abortion Policy in the Absence of Roe).
• Illinois enacted legislation announcing the state’s intention to protect abortion rights in the event Roe v. Wade were overturned, replacing a law encouraging the state to ban abortion in that event.
• Oregon and New York required coverage for abortion in private health plans without cost sharing (Oregon’s requirement goes into effect in 2019).
• Illinois repealed its long-standing ban on using state funds to provide abortion coverage for Medicaid enrollees and in insurance coverage for state employees.
• Oregon moved to provide access to abortion services for immigrants who are not yet eligible for Medicaid.
• In response to a court order, Idaho repealed its ban on the use of telemedicine for medication abortion.

Eleven states took steps to expand access to family planning:

• Nine states expanded insurance coverage of contraception. These include measures to
  • prohibit cost sharing  in Maine, Massachusetts, Nevada and Oregon;
  • require coverage of sterilization in Maine, Massachusetts, Nevada, Oregon and New York;
  • include coverage of over-the-counter methods in Massachusetts, Nevada, New York and Oregon; and
  • allow women to obtain up to a year’s supply of a contraceptive method at one time in Colorado, Maine, Massachusetts, Nevada, New Jersey, New York, Oregon, Virginia and Washington.
• Hawaii, Maryland and Ohio enacted legislation allowing individuals to obtain prescription contraceptives from a pharmacy without first obtaining a prescription from a physician.
• Maryland and Nevada adopted measures guaranteeing the state will use its own funds to replace funding lost if the federal government excludes Planned Parenthood affiliates from receiving reimbursement for services billed under Medicaid and other federal programs.

Seven states moved to expand access to other sexual and reproductive health care and education:

• Georgia authorized health care practitioners to provide at least some STI treatment for the partner of a patient diagnosed with an STI without first examining the partner.
• Arizona and South Dakota authorized certified nurse midwives (and in Arizona, advanced practice nurses) to prescribe drugs and devices related to reproductive health care.
• Minnesota allowed individuals younger than 21 to qualify for the state’s Medicaid family planning expansion based on their own income, rather than their parent or family’s income.
• Indiana required age-appropriate and evidence-based child abuse and child sexual abuse education in public schools.
• New Jersey and Rhode Island expanded existing requirements for infertility coverage in private health insurance plans.