I. Overview
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The state program at the Center for Reproductive Rights (the Center) tracks legislation in all 50 states that advances and restricts women’s access to reproductive health care. With the majority of states adjourned for the session, this report gives a midyear overview of legislation tracked by the Center from January to July of 2005. ¹ If you would like additional information or assistance with legislation relating to reproductive rights or health, please contact the Center’s legislative counsel, Katherine Grainger, at 917-637-3672 or Kgrainger@reprorights.org.

As of August 1, 2005, the Center has tracked over 600 bills pertaining to abortion, contraception, and other issues affecting reproductive rights. So far this session, twenty states have enacted twenty-seven laws designed to restrict access to abortion and reproductive health. Five states have passed five laws that give women greater access to reproductive health services. Also this session, we have witnessed an incredible push to give the fetus personhood rights and protections. This has been observed by the introduction of 115 fetal homicide bills, six of which were enacted, that recognize the fetus as an independent victim of homicide or assault. We have also tracked an increased number of bills that punish pregnant women for their behavior during pregnancy, with six states enacting six laws that restrict women’s rights for the asserted purpose of protecting the fetus.

Five bills have been vetoed so far this session, including three bills (Colorado, Massachusetts, New York) that would have provided more extensive access to emergency contraception. On a more positive note, a bill in Arizona that would have provided refusal rights for pharmacists (related to contraception) and health care providers (related to abortion) was vetoed by the governor. In Kansas, the governor vetoed a bill that would have placed unnecessary regulations on abortion clinics.

Below we provide a more detailed analysis of the bills introduced, enacted and vetoed so far this legislative session.

II. Abortion Access

A. Abortion Bans

Since January, we have seen a marked increase over prior sessions in the number of bills introduced aimed at banning abortion. Many of these bills are intended to take effect in the event that Roe v. Wade is overturned. The Center tracked a total of forty-four bills in twenty-two states (including the territory of Guam), which would establish some type of ban on abortion; two of these bills were enacted (South Dakota and Texas).

Approximately eight bills in five states were introduced this session that would ban abortion in all instances, except when absolutely necessary to save the life of the mother. South Dakota enacted a law, that would become effective "on the date that the states are recognized by the United States Supreme Court to have the authority to regulate or prohibit abortions at all stages of pregnancy," which bans abortion at all stages of pregnancy and lacks an exception for the health of the mother. A bill in Texas was enacted that outlaws abortion on a viable fetus in the third trimester. Exceptions would be made only if the viable fetus had an irreversible brain impairment, or to prevent brain damage, paralysis, or death to the mother.

The Center also tracked sixteen bills in nine states, which attempt to restrict "partial-birth abortions." None of these bills met any success in the legislatures, which shows a decline in the prevalence of such laws in comparison to recent sessions.

B. Biased Counseling and Mandatory Delay

Between January and the end of July, the Center has tracked approximately eighty bills in thirty-four states that would require biased counseling and a mandatory delay before a woman could have an abortion.

Since January, twenty-two states introduced approximately thirty-seven bills that would require that a woman receive state scripted information before her abortion, while another eighteen states introduced over thirty bills that would require a woman to delay her abortion for an established period of time. Of these bills, two were enacted, in Georgia and Oklahoma. In addition, South Dakota placed additional provisions in their existing mandatory delay/biased counseling law to require that, in addition to receiving information twenty-four hours prior to the procedure, women must now be informed in writing at least two hours before the abortion that the abortion "will terminate the life of a whole, separate, unique, living human being," and could produce adverse mental health outcomes and death to the woman. These additional South Dakota provisions have been enjoined. In Minnesota an informed consent/mandatory delay bill passed one legislative body before the legislature adjourned for the year.

Also this session, twenty-three fetal pain provisions were introduced in fifteen states. The majority of the bills would require that the state’s informed consent materials be amended to include information that the fetus has the capacity to feel pain at a specified point in gestation. Arkansas, Georgia, and Minnesota have enacted fetal pain provisions this year.

The new Arkansas law amends the state’s informed consent measures to require that women seeking abortions at twenty weeks gestation receive written materials produced by the state, which include information that a fetus might be able to feel pain. In Georgia, a law was enacted that requires women to be orally informed, prior to an abortion, that information about fetal pain is available on a state sponsored website. The Minnesota law requires a physician or her agent to advise a patient seeking an abortion after twenty weeks gestation about whether or not anesthesia could alleviate fetal pain.

The measure enacted in Arkansas requires a physician to administer anesthesia to the fetus upon the patient’s consent. In Minnesota, a physician must anesthetize a twenty-plus week fetus, or refer the patient to another doctor prior to an abortion, upon a patient’s request. This session, however, bills were introduced in Colorado and West Virginia that would have mandated anesthesia irrespective of a patient’s consent. Finally, South Dakota enacted a measure to study various aspects of abortion, including the potential for fetal pain.

Anti-choice forces also introduced bills that would require medically unnecessary ultrasounds before a woman can consent to having an abortion. Three states introduced five bills that would amend their informed consent requirements to include such mandatory ultrasounds. In Indiana, the governor signed a bill into law that gives a woman the opportunity to view an ultrasound prior to obtaining an abortion. A similar law has passed one house in Michigan and remains pending.

Louisiana enacted a law that requires women seeking abortions due to rape or incest using state funds, to be offered the same "informed consent" information, without the 24-hour delay, that is required for all other abortions in the state.

C. Minor’s Access

During the 2005 legislative session, over eighty bills in thirty-six states were introduced that would directly restrict a minor’s access to health care. The majority of these bills would seek to add new requirements to pre-existing parental notice or parental consent laws, as well as change existing notice requirements to consent. We have also continued to see the disturbing trend of laws attempting to remove medical emergency exceptions for minors and restricting access to a judicial bypass. In addition, at least five bills were introduced this session that would require a minor to have parental consent in order to access contraception.

Eight of the bills introduced this session have been enacted. In Arkansas and Texas, legislators changed existing parental notice requirements to parental consent laws. As a result, minors in Arkansas must now obtain notarized written consent or in-person consent from a parent or guardian before a physician can perform an abortion. In Texas, minors must obtain the written consent of one parent before having an abortion. Georgia amended the state’s existing law, eliminating provisions that permitted persons standing in loco parentis to receive notification of a minor’s pending abortion. Under the new law, only a parent or guardian can receive the notice or waive the mandatory 24-hour period a minor must wait after notice has been given before she can have an abortion.

Also this session, Oklahoma enacted a parental involvement law, which requires notice to one parent forty-eight hours prior to an abortion. The Florida Legislature, as a result of an amendment to the state constitution passed by the voters in 2004, enacted a parental notice requirement that requires a physician to notify a minor’s parent or guardian at least forty-eight hours before an abortion may be performed. The Center for Reproductive Rights is challenging the Oklahoma and Florida laws; however, both are currently in effect.

While most states with enforced parental involvement laws make outright exceptions for medical emergencies, South Dakota and Idaho enacted laws this session that require parental notification within twenty-four hours after the performance of an emergency abortion on a minor. In South Dakota this requirement can be avoided if a minor indicates that she will seek a judicial bypass, whereas in Idaho a physician must deem it in the minor’s best interests to not report the abortion to a parent. Additionally, the new Idaho law requires the automatic appointment of a guardian ad litem for all minors seeking judicial bypasses. The Idaho law is not in effect due to a lawsuit brought by the ACLU and PPFA challenging the constitutionality of the judicial bypass and the post-emergency reporting requirement.

Finally, Kansas has adopted a measure that requires any physician who performs an abortion on a minor under the age of 14 to retain fetal tissue extracted during the procedure and send it to the Kansas Bureau of Investigation. The tissue is to be submitted "for the purpose of DNA testing and examination," and will allegedly be used to investigate incidents of child rape.

D. Targeted Regulation of Abortion Providers (TRAP)

TRAP laws regulate the medical practices of doctors who provide abortions by imposing burdensome requirements that are different and more stringent than regulations applied to comparable medical practices. These excessive and unnecessary government regulations ultimately harm women’s health and inhibit women’s reproductive choices by making abortions more expensive and increasingly difficult to obtain.

So far this legislative session, approximately fifty TRAP bills have been introduced in eighteen states. The majority of these bills would require abortions to be performed in hospitals, in ambulatory surgical centers, or by a physician with admitting privileges at a local hospital. Other bills would require abortion facilities to be licensed by the state’s health department. Also this session, we tracked several bills that would regulate abortions performed after the first trimester.

Of the fifty bills introduced so far in 2005, three were enacted (Florida, Indiana, and Mississippi) and one was vetoed (Kansas). Florida enacted a bill that will impose regulations on abortion clinics where second-trimester abortions are performed. The TRAP regulations passed in Indiana mandate that all abortion clinics performing surgical abortions must be licensed pursuant to regulations adopted by the health department.

In Mississippi, a law was enacted to amend a Mississippi TRAP bill held unconstitutional by the Federal District Court. During the 2004 legislative session, the state of Mississippi enacted a law requiring all abortions performed after the first-trimester take place in a licensed hospital or ambulatory surgical facility (ASF). Notably, abortion facilities in Mississippi are ineligible to become licensed as ASFs or hospitals. The Center challenged this 2004 measure and the court found that the law was unconstitutional because it amounted to a ban on second-trimester abortions in the state. During the 2005 session, the Mississippi Legislature enacted another bill regulating abortions after the first-trimester. Unlike the 2004 law, however, the new provision states that, in addition to ASFs and hospitals, second-trimester abortions can be performed at a Level I abortion facility. Abortion providers appear to be eligible under this law to obtain a Level I license.

The Governor of Kansas vetoed a bill that would have required the promulgation of detailed regulations for abortion clinics. The governor explained that while she supports updating regulatory oversight to ensure the best possible treatment for all patients in Kansas, the proposed legislation, "falls far short of meeting this basic standard of care." The Kansas Legislature failed to override the governor’s veto of the bill.

E. Clinic Access

The anti-abortion movement has focused much of its energy on picketing abortion clinics and harassing women who seek reproductive health care. Laws promoting access to reproductive health generally establish "buffer zones" around abortion clinics to permit women to pass safely and without such harassment. This session, the Center tracked six bills in four states dealing with clinic access. Montana enacted a bill that protects the right to obtain medical treatment by establishing penalties for persons who obstruct access to health care facilities. Similar bills were introduced in Rhode Island and Utah, but did not see any movement. In Massachusetts a law was introduced that would repeal the state’s existing clinic access law.

F. Funding Crisis Pregnancy Centers

Currently eleven states allow motorists to purchase "Choose Life" license plates, which channel funds to non-profit, anti-abortion organizations, including so-called "crisis pregnancy centers" (agencies that promise comprehensive medical advice and pregnancy services but deliver anti-abortion propaganda instead). So far this legislative session, we have monitored thirteen license plate bills, introduced in nine states, of which one, in Ohio, was enacted. The new Ohio law permits motorists to pay an extra $30 for a "Choose Life" license plate, with $20 of the proceeds going toward non-profit groups that encourage adoption. This law is currently being challenged by the ACLU of Ohio, but is in effect and the license plates are available for purchase.

Moreover, this session, we have seen the introduction of over twenty bills that provide direct financial support to crisis pregnancy centers and other organizations that support abortion alternatives. Four of these bills were enacted in Kansas, North Dakota, Minnesota and Missouri. In Kansas, a bill was adopted that provides competitive grants to not-for-profit organizations that provide services to encourage women to carry their pregnancies to term. The law prohibits grants to groups that provide abortion services. North Dakota created a program to promote childbirth over abortion. The law appropriates $500,000 over two years, through the transfer of funds currently allotted to the Temporary Assistance for Needy Families (TANF) program, to be used to inform pregnant women about adoption and parenting. The "Positive Alternatives Act" was created this session by a Minnesota law that appropriates 5 million dollars over a four year period to encourage women to carry their pregnancies to term. Finally, Missouri enacted a law that designates more than one million dollars in federal and state funds for women "at or below 200 percent of the Federal Poverty Level" to be used to encourage women to carry their pregnancies to term, pay for adoption, or assist with caring for dependent children. Notably, the Missouri funds are only available during pregnancy and one year thereafter.

III. Contraception

A. Emergency Contraception

Emergency contraception, commonly referred to as "EC" or the "morning-after pill," refers to a high dose of ordinary prescription birth control pills that sharply reduces the likelihood of pregnancy if taken within three days of unprotected sex.

The dominant legislative model for providing wider access to EC is the "collaborative practice" bill, under which a licensed pharmacist can become authorized to dispense EC without a prescription by entering into a written agreement with a physician. This session, the Center tracked nine collaborative practice bills introduced in eight states, of which one, in New Hampshire, was enacted into law. In Massachusetts and New York, EC collaborative practice bills were passed by the legislatures, only to be vetoed by the governors of each state. The Massachusetts Governor supported his veto by incorrectly defining emergency contraception as an abortifacient. In New York, the governor claimed to have vetoed the bill "because it did not require minors to see a physician."

In Vermont and Oregon, collaborative practice bills passed one house of the legislatures. The Vermont Legislature has adjourned for the 2005 session; the Oregon Legislature remains in session until mid-August. The Maryland Senate passed an EC access bill under which a pharmacist would not need to enter into a written agreement with a physician, but could instead complete a brief training course to become qualified to dispense EC. The bill failed to pass the Maryland House before the legislature adjourned.

Also this session, the Center tracked twenty bills introduced in fourteen states that would provide EC related information and services in hospital emergency rooms for survivors of sexual assault. Three of these bills reached the governor’s desk, resulting in a signed "EC in the ER" law in New Jersey and gubernatorial vetoes in Colorado and Massachusetts. An Arkansas EC in the ER bill passed one house before the Arkansas Legislature adjourned for the 2005 session.

Access to emergency contraception on public university campuses was also addressed this session. A bill passed one house of the Wisconsin Assembly that would prohibit the distribution of EC on state college campuses. The Wisconsin Legislature is in recess until September 20th and the bill is still pending. A similar bill was also introduced in West Virginia, but died before the legislature adjourned for the 2005 session.

B. Refusal Clauses

The term refusal clause, in the context of reproductive rights, relates both to provisions that allow health care providers to refuse to perform abortion-related services and to provisions that allow pharmacists and other authorized dispensers to refuse to fill prescriptions for contraceptives based on moral, ethical or religious beliefs. This session we monitored refusal clause bills introduced as stand-alone bills, with titles such as "Right of Conscience Act," as well as bills embedded into other provisions governing the practice of medicine or pharmacy.

In connection with legislative interest in emergency contraception this session, numerous bills were introduced that would allow pharmacists and other authorized dispensers to refuse to fill valid prescriptions for birth control pills, emergency contraception, and other contraceptives. So far this session, the Center has tracked twenty-four measures in sixteen states that would allow a pharmacist to refuse to dispense a valid prescription because of moral beliefs.

Legislators also introduced eleven bills in nine states that would provide a right of refusal to hospitals, physicians, nurses and other health care providers for abortion-related procedures. Two bills passing one house, in Ohio and Wisconsin, would provide refusal rights for both health care providers (related to abortion) and for pharmacists (related to contraceptives). Ohio has adjourned, but Wisconsin is still in session. A third bill, in Arizona, would have had the same impact but was vetoed by the governor.

Although negative pharmacist refusal legislation dominated the 2005 session, six states (California, Missouri, New Jersey, Nevada, Wisconsin, West Virginia), proposed affirmative legislation that would require pharmacies to fill prescriptions for contraceptives. The California bill has passed one house and is still pending. Moreover, in Illinois, the governor issued an emergency regulation requiring all pharmacies to ensure that prescriptions for contraception are filled without delay.

C. Contraceptive Equity

At the midyear mark, the Center has tracked twenty contraceptive equity bills introduced in thirteen states. Contraceptive equity laws generally require health insurance plans that provide prescription drug coverage to include contraceptive drugs and devices within that coverage. These laws redress the common discriminatory practice of insurance plans covering virtually all prescription drugs, including medication for erectile dysfunction, while declining coverage for contraceptives. This session, contraceptive equity laws were signed in both Arkansas and West Virginia, bringing the number of states with such laws to twenty-three. The Arkansas measure is a somewhat weak mandate, however, in that it specifically excludes emergency contraception from the coverage requirement. A contraceptive equity measure has passed one house in Oregon.

IV. Elevating the Legal Status of the Fetus

A. Fetal Homicide

This session was also marked by a significant number of bills that would elevate the legal status of the fetus. The Center tracked approximately 115 fetal rights measures introduced in approximately thirty-nine states, including bills that establish the fetus as an independent victim of homicide or grant the fetus a right of "personhood" for the purpose of state laws or state constitutional guarantees.

Fetal homicide was a major focus of legislators this session, with five new laws enacted (Maryland, West Virginia, Florida, Oklahoma, and Arizona). In Maryland, the governor signed a bill into law that recognizes a viable fetus as a distinct victim of murder, manslaughter, or unlawful homicide. Unlike the other fetal homicide bills passed this session, however, the Maryland law explicitly states that the newly enacted measure should not be construed to confer personhood on the fetus. Laws enacted in West Virginia and Florida recognize pre-viable fetuses as independent victims of homicides ("embryo or fetus" and "unborn quick child," respectively). While fetal homicide laws were passed in Oklahoma and Arizona that contain no viability requirement, and can be enforced for the unlawful killing of a fetus at the "moment of conception" or "at any stage of development." All of the laws passed this session contain exceptions for legal abortion.

Fetal homicide bills in Kansas and Oregon that would have established a fetus "at any stage of its development" as a possible homicide victim passed one house of those legislatures. The Kansas Legislature has adjourned for the session and the Oregon Legislature is scheduled to adjourn in mid-August.

Also this session we tracked bills that elevate the severity of crime or the sentence a person can receive for killing a pregnant woman. Maine enacted two such laws, one which allows for an increased sentence for the homicide of a pregnant woman and the other of which creates a new crime of "elevated aggravated assault" on a pregnant woman. Bills that would assist the state in determining whether a homicide victim was pregnant by requiring the medical examiner to include pregnancy on the death certificate were introduced in seven states, and one was enacted in Colorado. A law was adopted in Virginia barring the execution of pregnant inmates.

B. Prenatal Use of Controlled Substances

Also this session we saw an increased number of bills that would allow civil intervention and, in some instances, criminal prosecution of women for using illegal substances during their pregnancies.

Four states (Arizona, Colorado, Nevada, and Louisiana) enacted legislation that expands the definition of "abuse" or "neglect" to include instances where drugs are present in the infant’s system at birth. Arkansas adopted a law that expands the definition of "neglect" under the Child Maltreatment Act to include prenatal drug use that causes a child to be born with an illegal substance in its system or a drug-related health problem. Colorado enacted a statute that expands the definition of "child abuse or neglect" to include instances in which an infant tests positive at birth for a controlled substance. Nevada amended its child abuse statutes to require health professionals and other specified persons to refer cases in which a newborn infant has been affected by prenatal drug use or exhibits withdrawal symptoms to child welfare services. Louisiana amended the Children’s Code to provide that "neglect" includes instances when a newborn is identified by a health care provider as having been affected by prenatal drug use or exhibiting symptoms of withdrawal.

In Arizona, a law was enacted that amends the Dangerous Crimes against Children Act in a manner that allows for addicted pregnant women to be prosecuted for child abuse and drug transfer to minors. Rather than directly amend the definition of "abuse" or "neglect" to include prenatal drug use, as in the four states above, Arizona reached a similar result by amending the definition of "minor who is under twelve years of age" to include an unborn child.

Oklahoma also opened the door to possible prosecution of addicted pregnant women by enacting a fetal homicide statute that contains an unusually limited exception for conduct by the mother. While many of the fetal homicide statutes provide an exception for any conduct of the pregnant woman, Oklahoma’s new law provides that "under no circumstances shall the mother of the unborn child be prosecuted for causing the death of the unborn child unless the mother has committed a crime that caused the death of the unborn child." Because drug use constitutes a crime, it is possible that a pregnant woman in Oklahoma could be prosecuted for fetal homicide if her prenatal drug use resulted in death of a fetus.

V. CONCLUSION

Additional information about what is happening in the states, including fact sheets, information about laws on the books, and updates about cases being brought by the Center can be found on our website at www.reproductiverights.org. Our website also contains a report entitled, "What if Roe Fell: The State-by-State Consequences of Overturning Roe v. Wade," which provides a detailed study conducted by the Center analyzing the impact that a Roe reversal would have on each state. The Center will continue tracking legislation for the remainder of the 2005 session, and newly enacted and vetoed laws will be posted on our website.

Endnotes

1. As of August 1, 2005, three states, Massachusetts, North Carolina, and Oregon are still in regular session. An additional ten states are still in session but are on recess (Michigan resumes regular session on August 3rd, California resumes regular session on August 15th, Oklahoma resumes regular session on September 2nd, New Hampshire resumes regular session on September 8th, Wisconsin resumes regular session on September 20th, New York and Pennsylvania resume regular session on September 26th, Illinois resumes regular session on October 19th). Missouri is scheduled to hold a special session in September. All other states have adjourned for the 2005 session.