I. OVERVIEW | II. ABORTION BANS | III. ABORTION ACCESS | IV. FUNDING | V. CONTRACEPTION | VI. ELEVATING THE LEGAL STATUS OF THE FETUS | VII. CONCLUSION

I. OVERVIEW

The state program at the Center for Reproductive Rights (the Center) tracks legislation in all 50 states that advances or restricts women’s access to reproductive health care. With the majority of states adjourned for the session, this report gives a mid-year overview of legislation tracked by the Center from January to July of 2006 [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 kgrainger@reprorights.org.

As of July 31, 2006, the Center has tracked over 600 bills dealing with access to abortion, contraception, funding and other issues affecting reproductive rights. Nearly 100 of these introduced measures sought to increase or secure women’s access to reproductive health and the remaining introduced bills sought to restrict it. Of the bills tracked by the Center so far this session, thirty-three were enacted in twenty-two states. Six of these enacted measures give women greater access to reproductive health services.

Legislation to ban abortion at all stages of pregnancy dominated this legislative session. The addition of two conservative members to the United States Supreme Court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., energized anti-choice forces to introduce legislation to force the Court to reexamine Roe v. Wade. [2] This push to overturn Roe resulted in the largest number of bills introduced to ban abortion in all stages of pregnancy since the early 1990’s, when anti-choice advocates decided to test the waters after the Webster v. Reproductive Health Services [3] decision. Three states, South Dakota, Mississippi, and Louisiana garnered the votes needed to give momentum to some of the most prohibitive abortion legislation in the country. The anti-choice forces were successful in Louisiana and South Dakota, where the first abortion bans since 1991 were enacted.

Though several legislatures focused heavily on bans during the 2006 session, the majority of bills introduced since January or carried over from 2005 focused on restricting access to abortion through various means other than bans, including heightened restrictions on providers and women seeking reproductive health services.

Positive forces were also at work this session. Hawaii enacted a law to prohibit the state from interfering with a woman’s right to choose. The Governor of Arizona vetoed four anti-choice measures before the state’s legislature adjourned for the session. Additionally, pro-choice advocates in several states, including Indiana, West Virginia, and Kansas were able to defeat all anti-choice bills introduced this session.

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

II. ABORTION BANS

A. Absolute Bans Twelve states have introduced nineteen bills seeking to ban abortion in all stages of pregnancy. This push to overturn Roe has resulted in the largest number of bills introduced to ban abortion in all stages of pregnancy since the early 1990’s. While most of the abortion ban legislation introduced during the 2006 session saw little movement, in three states, South Dakota, Mississippi, and Louisiana, anti-choice advocates garnered the votes needed to give momentum to some of the most prohibitive abortion legislation in the country.

Anti-choice forces were successful in South Dakota where the Governor signed the first bill since 1991 to ban abortion at all stages of pregnancy. The South Dakota measure is considered one of the most restrictive in the country, banning all abortions except to save the life of the pregnant woman. Moreover, in circumstances where a woman’s life is in jeopardy, under the newly enacted ban, a physician is still obligated to also try to save the fetus. The bill has not gone into effect because the new law is being put to public vote as the result of a petition drive that collected enough signatures to put the bill on the November 2006 ballot.

The law will not go into effect unless the voters of South Dakota vote to uphold the ban. If the ban is upheld, it will be challenged by Planned Parenthood of South Dakota. In preparation for such an occurrence, also this session the South Dakota legislature passed a bill to establish a "life protection subfund" to cover possible litigation costs needed for the state to defend the ban. According to the new provision, the legislature will award resources to this fund, and individuals will be able to donate money directly through the Commissioner of the Bureau of Administration.

Louisiana also enacted a provision that prohibits abortion throughout all stages of pregnancy except to avert "substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman." While the original version of the ban was introduced to go into effect upon the Governor’s signature, the bill was amended to take effect only if Roe is overturned or the U.S. Constitution is amended to allow states to prohibit abortion. The bill only contains an exception for procedures performed under Medicaid, which currently requires funding for abortions in cases of rape or incest. The Louisiana ban states that it will allow such exceptions for Medicaid recipients, as long as they remain requirements for the state to continue to receive federal Medicaid funds. This version was signed by the Governor, making Louisiana the second state to ban abortion this legislative session.

Finally, Mississippi came very close to passing an abortion ban in defiance of Roe, but the ban died in conference committee moments before the legislature adjourned for the year. The Mississippi ban would have outlawed all abortions except to save the life of the pregnant woman or in cases of rape or incest. In Ohio, a ban bill is still pending. Ohio’s legislative session is scheduled to adjourn on December 31, 2006.

B. So-called "Partial Birth Abortion" Bans

The Center also tracked fifteen bills in six states which attempt to restrict so-called "partial birth abortions." So-called "partial-birth abortion" bans and similar laws have been passed by thirty-one states. Legal challenges to these laws have been brought in twenty-two states, and no fewer than fifty federal and state court judges have found them to be unconstitutional. For the second year in a row, none of these bills met any legislative success.

Four positive measures were introduced in Hawaii, Minnesota, and Rhode Island that reaffirmed a woman’s right to have an abortion post-viability when the abortion is necessary to protect the life and health of the woman. All of these bills died before adjournment.

C. Other Other bills were also introduced this session that attempted to ban abortion in particular circumstances. For instance, West Virginia introduced a bill that sought to make it illegal to perform abortions at state college or university medical facilities. Legislators in Maine and Tennessee introduced bills that sought to make it illegal to conduct abortions based on "projected sexual orientation" and West Virginia introduced a similar measure that would have outlawed abortion based on gender. None of these bills moved before adjournment.

III. ABORTION ACCESS

A. Biased Counseling and Mandatory Delay

Since the beginning of the 2006 legislative session, the Center has monitored ninety-two biased counseling and/or mandatory delay bills introduced in thirty-nine states. These bills typically require a woman to be subjected to biased counseling and a mandatory delay before she can have an abortion. These proposed laws used many different strategies, including a mandatory 24-hour "reflection period" after counseling, written consent, coercion screening, and mandatory receipt of information on the "medical and psychological risks of abortion." Moreover, lawmakers in West Virginia introduced a law that would require medical facilities to warn women seeking an abortion of an increased risk of breast cancer. Three biased counseling and/or mandatory delay bills were enacted this legislative session and two were vetoed.

A trend that continues from the 2005 legislative session is the proposal of bills that seek to amend biased counseling statutes that require a physician to perform an ultrasound before an abortion, even if the ultrasound is unnecessary. Eight such bills were monitored this session, with two enacted in Michigan and Oklahoma. Both new laws amend the state’s biased counseling statute to require that a physician offer a woman an opportunity to view an ultrasound imaging and obtain a picture of that imaging prior to the performance of an abortion. Oklahoma’s law also requires that a woman be told that she can listen to the fetal heartbeat. Both new laws require that the respective departments of health include on their websites a list of locations where ultrasounds are performed free of charge. Notably, all locations offering free ultrasounds in Michigan are so-called "crisis pregnancy centers."

Fetal pain provisions account for twenty-eight of the ninety-two biased counseling/mandatory delay bills introduced this session. The majority of these 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.

Oklahoma, Wisconsin and Arizona passed fetal pain bills. The measures in Wisconsin and Arizona were subsequently vetoed. Oklahoma’s newly enacted bill requires that a woman twenty weeks after conception be told that she has the right to view printed materials on a state-sponsored website on "pain and the unborn." The bill also requires the website to contain information that "by twenty weeks gestation, the unborn child has the physical structures necessary to feel pain."

The fetal pain provision vetoed by the Governor of Arizona would have required a physician to inform a pregnant woman twenty weeks after conception that a fetus has the physical structures to feel pain. The bill also required the physician to inform the woman that at this stage in development the fetus draws away from stimuli and could experience pain even if the mother has received a pain reducing drug. In Wisconsin, a fetal pain bill was vetoed that would have amended the state’s biased counseling statute to require that a woman be informed that she can review materials stating that a fetus can feel pain after twenty weeks, and that during prenatal surgery on a fetus at twenty weeks gestational age anesthesia is routinely used. These materials would have been published on the department of health’s website and would also have been available on a 24-hour hotline.

Five fetal pain bills, including the measure enacted in Oklahoma and four bills introduced in Iowa and Rhode Island, included reporting requirements. These provisions sought to require practitioners to annually report to the state departments of health the number of women who requested printed materials on fetal pain and the number of women who viewed the material and chose to proceed with abortions. Aside from the enacted Oklahoma measure, none of these bills passed out of their house of origin, and none are still pending.

Other fetal pain legislation introduced this session included an Indiana bill which died in conference after passing both houses, which would have required that a practitioner inform a pregnant woman that a fetus may feel pain and that anesthetic could be provided to the fetus during the abortion. Notably, this Indiana bill was not limited to a specific gestational age. Another bill introduced in West Virginia sought to mandate the administration of anesthesia to a fetus over seven weeks, but died before passing out of its house of origin. Four fetal pain bills are still pending in California, Michigan, and in New York.

Though most biased counseling and/or mandatory delay bills introduced this session are restrictive, a few pro-active bills were monitored this session. In Idaho, a bill was enacted that amends the state’s informed consent requirements to require the Idaho Department of Health to publish "nonmisleading and medically accurate" printed informed consent materials and delete information about "brain and heart function, and the presence of external members and internal organs during applicable stages of development." West Virginia’s lawmakers introduced a series of pro-active counseling measures before adjourning for the 2006 session. The bills focused on counteracting the biased and medically inaccurate information dispersed at crisis pregnancy centers. Two of the measures would have required that pregnant women be counseled in all options and include measures to assure that faith-based facilities provide services that maintain quality standards. Another bill proposed that pregnant women be counseled on all reproductive options. None of these bills were enacted.

B. Minors Access

Restricting minor’s access to reproductive health care continues to be a dominant trend in the state legislatures. At this point in the legislative session seventy-nine bills have been introduced or carried over from the 2005 session dealing with minor’s access to abortion, contraception, and health care.

Of the seventy-nine bills tracked by the Center so far this session, six were enacted, and three were vetoed. In Utah, the Governor signed a bill making the state’s existing parental involvement statute more restrictive. As a result, a minor in Utah must now obtain parental consent and notification before having an abortion. The notice requirement contains no bypass option; therefore, regardless of whether a minor received a bypass of the parental consent requirement, a physician must still notify the minor’s parent before performing an abortion. In Oklahoma, a law was enacted that tacks on a "written informed consent" requirement to the state’s parental notice law. Minors in Oklahoma are now required to notify and get the written consent of one parent before having an abortion.

The Governor of Arizona vetoed two provisions that would have restricted abortion access for minors. The first bill would have required that the mandatory written parental consent be notarized before a minor could have an abortion. The second measure sought to make it more difficult for a minor to get a judge’s permission to have an abortion without parental consent.

Tennessee enacted three laws dealing with minors and abortion before adjourning for the legislative session, including a provision requiring anyone who makes a diagnosis of pregnancy on a minor sixteen years or younger to report the pregnancy to the department of children’s services. A similar measure was also enacted that requires any physician who performs an abortion on a minor thirteen years old or younger to preserve fetal tissue extracted from the abortion, as well as report the abortion to law enforcement. Finally, Tennessee passed a law that makes it a crime to impersonate a parent for the purpose of circumventing the parental consent requirement for a minor to have an abortion.

Fourteen additional reporting requirements were introduced in five states that would either require providers to report the number of abortions performed on minors to the state or mandate that state courts document the number of judges who authorize or deny parental notice or consent waivers. Three of these measures passed one house before adjournment in Minnesota, Oklahoma, and West Virginia. The Oklahoma and West Virginia measures would have required that physicians report the number of abortions performed minors, as well as required state courts to report statistics on granted bypasses.

The Center also tracked eleven bills that would make it more difficult for minors to access contraceptives. The majority of this legislation either sought to require minors to secure parental consent before filling a prescription for contraceptives or require a pharmacist to notify a parent before filling a prescription for contraceptives. While none of these bills have been enacted at this point in the session, they were introduced in seven states and New York’s bill is still pending.

Finally, four bills were introduced in Rhode Island that would have lessened the hoops a minor would have to jump through in order to have an abortion. All four of these bills died before the Rhode Island legislature adjourned. In Colorado the legislature enacted a law, without the Governor’s signature, that allows a minor to authorize medical care related to pregnancy. While the new law does not extend to abortion, it demonstrates the legislature’s intent to allow minors to make important decisions concerning their reproductive health. A similar bill was also passed by the Hawaii legislature but was vetoed by the Governor due to concerns that the bill was written too broadly.

C. Targeted Regulation of Abortion Providers (TRAP)

TRAP laws single out physicians’ offices and outpatient clinics where abortions are performed and subject them to requirements purportedly to protect the health of patients, but that are not imposed on comparable medical facilities. 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.

Numerous states have TRAP laws on their books. Some of these laws were passed many years ago, while others are part of a recent wave of new TRAP legislation. This legislative session alone, forty-six TRAP bills have been introduced in seventeen states, the majority of which seek to require abortions to be performed in hospitals, ambulatory surgical centers, or by a physician with admitting privileges at a local hospital. Other bills were introduced that would require abortion facilities to be licensed by the state’s health department.

Of the forty-six TRAP bills introduced so far in 2006, three were enacted in South Dakota, Mississippi, and Pennsylvania. Mississippi’s new law deletes the repealer contained in the state’s existing TRAP statute. In 2005, Mississippi enacted a law requiring all abortion clinics where procedures are performed after the first trimester to be licensed as Level I or Level II abortion facilities. The existing statute contained a clause stating that the licensure requirement would be repealed on June 30, 2006. The new law eliminates this repeal date, and abortion clinics where second trimester abortions are performed must now continue to meet the licensing requirement. In South Dakota a bill was enacted that directs the Department of Health to promulgate rules for licensure of abortion facilities. The new South Dakota law states that all abortion clinics in South Dakota are required to be licensed under the Act. Finally, in Pennsylvania, the Governor signed a bill that requires abortion facilities to pay into an account in the state treasury called a "Patient Safety Trust Fund." The provision also requires abortion facilities to submit patient safety plans and report serious events, incidents, and infrastructure failures.

Notably, five other bills in Indiana, Georgia, Kansas, South Dakota, and Virginia passed at least one house before adjournment. The Indiana bill, which passed both houses before dying in conference, sought to challenge regulations promulgated by the health department in late 2005, which allowed pre-existing abortion clinics to grandfather out of the proposed regulatory clinical plant requirements. If the Indiana bill had passed, it would have potentially closed down every abortion clinic in Indiana not in compliance with the new physical plant requirements.

D. Reporting Requirements

Since January, the Center has tracked nineteen bills in eight states requiring providers to report abortion numbers to the various state departments of health. One such measure was vetoed by the Governor of Kansas. The Kansas measure would have required a physician to report to the Secretary of Health "detailed reasons" for terminating a pregnancy past 22 weeks gestation, as well as specific fetal anomalies found in an aborted fetus at any stage in development. Three measures passed one house in Maine, Oklahoma, and Virginia before adjournment. Each measure would have required physicians to report information such as the age of the patient, number of previous abortions, and gestational age of the fetus. A bill is still pending in Ohio which would require a physician to complete and submit to the Department of Health an individual abortion report for each abortion performed.

Other reporting measures were also enacted this session and are discussed in other sections of this report.

IV. FUNDING

A. Funding Crisis Pregnancy Centers

At the mid-year point, the Center has tracked twenty-nine bills introduced in twelve states to fund crisis pregnancy centers, anti-abortion organizations that often promise comprehensive medical advice and services but instead deliver anti-abortion propaganda. Since January, legislation to create funding for crisis pregnancy centers has been introduced in two forms: bills that allow for the sale of "choose life" license plates (specialty plates that bear an anti-abortion message), and bills that establish funding schemes to channel monies directly to crisis pregnancy centers.

Eleven bills in seven states have been introduced that attempt to establish choose life license plate schemes. Motorists who purchase the plates pay a fee above the cost of a standard license plate. The revenue generated from the sale is then funneled to crisis pregnancy centers. Georgia enacted such a provision, which will put the question of whether to sell such license plates before voters in November. Two bills were introduced in South Carolina and Maine that would allow motorists to purchase either pro-choice or anti-choice plates. Neither of these provisions moved before adjournment. The only license plate bill still pending this session is in New Jersey, which, if enacted, would allow the state to sell choose life plates.

Also this session, legislators introduced sixteen bills in five states that provide direct financial support to crisis pregnancy centers and other organizations providing abortion alternatives. Three of these bills were enacted, one in Ohio and two in Missouri. In Ohio an omnibus bill was signed that authorizes the state department of health to make grants for "women’s health services."" Such grants cannot be used to provide abortion services, counseling, or referrals. The Governor of Missouri enacted two laws that provide direct funding mechanisms for crisis pregnancy centers. The first provision authorizes an income tax credit for fifty percent of contributions to crisis pregnancy centers. According to the new law, taxpayers can claim up to $50,000 per year with a $2 million statewide cap per year. The second law appropriates monies to the department of health to fund "alternatives to abortion services" for women at or below 200 percent of the Federal Poverty Level who are pregnant or postpartum up to one year. The funds cannot be used for family planning, and abortion related services and organizations that perform, induce, or refer for abortion are excluded from receiving such funds.

Two bills in Arizona and Oklahoma passed one house before both state legislatures adjourned for the session. The Arizona bill would have appropriated $500,000 from the state general fund to the department of health to fund crisis pregnancy centers. Oklahoma’s bill would have required the state department of health to establish and implement a program to facilitate funding to crisis pregnancy centers and other alternatives-to-abortion services.

B. Prohibiting the Use of Public Funds for Abortion

While many state legislatures have sought to use public money to fund crisis pregnancy centers during the 2006 session, they have also introduced legislation to further restrict the use of public money to fund abortions for low income women. At this point in the legislative session twenty-two bills have been introduced in ten states that seek to prohibit or restrict the use of state public funds to pay for abortions for low income women. Notably, of the ten states to introduce such legislation, half of the bills were introduced in states that currently provide state funding for low income abortions. Arizona, a state that provides public funding for low-income women seeking abortion, was the only state to pass legislation to restrict the use of public funds or tax monies in conjunction with abortions. This measure was subsequently vetoed by the Governor. This legislation was in direct conflict with a 1999 Center case where the Arizona Supreme Court found that statutes and regulations that limit coverage of abortions under Arizona’s Medicaid program were unconstitutional. See Simat Corp. v. Arizona Health Care Cost Containment System, 56 P.3d 28 (Ariz. 2002).

In Minnesota a bill was nearly passed that would have prohibited using state-sponsored health program funding for abortions, except to the extent necessary for continued participation in a federal program. This provision was also in violation of a 1995 Center case where the Minnesota Supreme Court held that the state Medicaid program’s refusal to fund medically necessary abortions violated the right of privacy under the Minnesota Constitution. See Women of the State of Minnesota v. Gomez, 542 N.W.2d 17 (Minn. 1995).

The other funding prohibitions introduced this session did not move, though four prohibition bills are still pending in New York and Ohio.

C. Insurance Coverage

Finally, the Center tracked nine bills this legislative session that would prohibit insurance coverage for abortions. None of these bills have moved but six are still pending in Michigan, Ohio, and Pennsylvania. Two bills were introduced in West Virginia that would have prohibited insurance coverage for RU 486. These bills saw no movement before the session adjourned. In addition, two bills were introduced in Rhode Island that would have repealed the state’s prohibition of insurance coverage for abortion. Neither of these bills moved before Rhode Island’s legislative session adjourned for the year.

V. CONTRACEPTION

A. Access to Emergency Contraception A significant number of bills introduced this session have dealt with either increasing or restricting access to emergency contraception. At the mid-year mark the Center has tracked forty-five bills dealing with access to emergency contraception in thirty states. Of the bills tracked, all but one sought to expand EC access. Of the two proactive EC bills that made it to the Governor’s desk this session, one was enacted and one was vetoed.

Collaborative practice bills develop mechanisms for a licensed pharmacist to become authorized to dispense EC without a prescription by entering into a written agreement with a physician. This session, the Center tracked seven pro-active collaborative practice bills, one of which was enacted in Vermont. Five of these bills are still pending in Illinois, Michigan, and New York. One bill, which is still pending in Michigan, seeks to ban collaborative practice agreements for emergency contraception.

Similarly, eleven bills were introduced this session that seek to expand access through pharmacist training models, where a pharmacist completes a brief training course to become qualified to dispense EC or other contraceptives. One such Colorado bill passed the legislature but was vetoed by the Governor. Five of the remaining pharmacist training bills are still pending in California, New York, and New Jersey.

Also this session, twenty-three bills were introduced dealing with access to emergency contraception after sexual assault. These bills seek to regulate emergency contraception in hospitals, clinics, and counseling centers by providing information and training and ensuring that victims of sexual assault have access to EC. Though none of these bills have moved so far this session, they received legislative attention in thirteen states. Moreover, six EC sexual assault bills are still pending in Illinois, Massachusetts, Ohio, and Pennsylvania.

In addition, the Center tracked three bills in two states introduced to expand or restrict access to EC at public universities and colleges. Two bills, still pending in New York, seek to require all public institutions of higher education to provide EC to any student requesting it. A bill in Wisconsin sought to prohibit the dispensing of EC at schools in the state university system, but failed to pass out of its house of origin before the legislature adjourned for the 2006 legislative session.

Two states, Virginia and Washington, introduced resolutions encouraging the FDA to approve over-the-counter status for Plan B emergency contraceptives. Also, West Virginia introduced a bill encouraging dissemination of information on EC. None of these resolutions remain pending.

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 provisions that allow pharmacists and other authorized dispensers to refuse to fill valid prescriptions for contraceptives based on moral, ethical or religious beliefs. So far this session sixteen bills in eight states proposed to give "conscience protection" to health care providers who refuse to provide a variety of reproductive-health related services. Moreover, twenty-nine bills in fourteen states have sought to allow pharmacists or pharmacies to refuse to fill valid prescriptions for contraceptives.

Of the sixteen provider refusal bills monitored this session, one made it to the governor’s desk in Wisconsin, where it was vetoed. The vetoed bill would have codified the right of health care providers and employees of health care providers to abstain from participation in activities including performing abortions and prescribing emergency contraception. The bill further provided that employer refusal to accommodate this observance constituted employment discrimination. One provider refusal bill is still pending in Michigan.

Of the twenty-nine bills introduced this session that would allow pharmacists to refuse to fill valid prescriptions for contraception, one was in enacted in Georgia. The new law allows a pharmacist to refuse to fill a prescription "for a drug whose purpose is to terminate a pregnancy," but requires such a pharmacist to "make all reasonable efforts" to find a pharmacist to fill the prescription or to return the prescription immediately to the patient. The bill contains language providing that this right to refuse may not be extended to prescriptions for birth control. An Oklahoma measure that would have given a pharmacist the right to refuse to fill, prescribe, or refer a prescription for emergency contraception passed out of its house of origin before the legislature adjourned for the session. Introduced bills in Tennessee and North Carolina sought to enact the right of both a pharmacy and a pharmacist to refuse to dispense EC, and an introduced bill in Minnesota sought to give pharmacies the right to refuse to stock EC. Pharmacist refusal bills are still pending in California, Illinois, Massachusetts, and Ohio. The California measure has passed its house of origin and is still pending in the legislature.

Additionally, four bills introduced in Missouri, New Hampshire, West Virginia, and Wisconsin sought to grant pharmacists immunity from any liability arising out of a refusal to dispense contraceptives. None of these bills are still pending.

Although negative refusal bills dominated the 2006 session, eleven bills in six states (Michigan, Minnesota, Missouri, New Jersey, Pennsylvania, and Wisconsin) were introduced to prohibit a pharmacist from refusing to dispense or transfer a valid prescription because of moral beliefs. Three of these provisions are still pending in Michigan, New Jersey, and Pennsylvania. The New Jersey bill has passed its house of origin.

Moreover, three bills this session dealt with posting requirements for pharmacies. Two bills in California and Massachusetts sought to enact the requirement that every pharmacy post a notice giving consumers information on prices, types of services and patients’ rights to timely prescriptions. Both of these bills are still pending, and the California measure has passed out of its house of origin. A Tennessee measure discussed above as a refusal clause bill also contains a posting requirement. The bill, however, still gives pharmacists the freedom to refuse to fill any prescription based on his/her moral beliefs.

C. Contraceptive Equity

So far this session, the Center has tracked twelve contraceptive equity bills in eight 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 seek to rectify the common discriminatory practice of insurance plans covering virtually all prescription drugs, but not contraceptives. The Governor of New Jersey signed into law one such measure codifying the requirement that both private insurers and state health benefits cover female contraceptives. None of the other contraceptive equity bills monitored so far this session have moved, though six bills are still pending in Michigan and Pennsylvania.

Three states, New Mexico, West Virginia and New York, which already have contraceptive equity provisions on the books, introduced legislation to enhance these laws. New Mexico passed such a measure establishing funding for a study to track whether the insurance industry is complying with state requirements to offer coverage for prescription contraceptives. New York’s bill is still pending.

VI. ELEVATING THE LEGAL STATUS OF THE FETUS

A. Fetal Homicide

At this point in the legislative session, sixty-four bills have been introduced or carried over from the 2005 legislative session that would establish the fetus as an independent victim under the state’s criminal homicide law. Of the sixty-four bills introduced, eight have been enacted in Alabama, Alaska, Georgia, Louisiana, Nebraska, Oklahoma, and South Carolina. Nine bills are still pending in Illinois, New York, and Pennsylvania.

The bills enacted in Alabama, Alaska, and South Carolina add to the states’ criminal homicide laws an "unborn child at any stage of development" as a possible victim. All three laws make exceptions for abortion and pregnant women’s behavior. The new Alaska provision also explicitly states that the legislative intent for passing such a law is not "to limit or alter a woman’s right to choose the outcome of her pregnancy." Even though Oklahoma enacted a fetal homicide law during the 2005 legislative session, this year the state enacted a measure that inserts "unborn child" into the states’ definition of homicide. As a result, the Oklahoma criminal statute now defines the unborn as human beings.

Before adjourning for the 2006 session, Louisiana passed two measures to expand the state’s feticide law. A person in Louisiana can now be prosecuted for feticide in the third degree for the operation of a vehicle under the influence of any controlled substance during which a fetus is killed. A person can also be charged with first degree feticide if during the commission of a second degree robbery, cruelty to juveniles, or an act of terrorism an "unborn child" is killed.

Finally, Georgia and Nebraska enacted laws that prohibit acts of assault or battery against the unborn. In Georgia, a person who assaults or batters a pregnant woman may be convicted of a "misdemeanor of a high and aggravated nature" and a person who commits an assault against the unborn can be prosecuted for a misdemeanor. The new law also changes the definition of the unborn from a "quick child" to an "unborn child any stage of development." The new Nebraska provision creates the Assault of an Unborn Child Act, which establishes a separate offense for "the commission of any criminal assault" which causes serious bodily injury to an unborn child at any stage of development. Notably, both Georgia and Nebraska law make exceptions for a pregnant woman’s conduct and any medical procedure performed with a woman’s consent.

B. Elevating Sentence

The Center also tracked eight laws in seven states that elevate the crime or sentence that a person can receive for harming a pregnant woman. These laws allow the state to recognize that harming a pregnant woman should be a heightened offense, without giving the fetus individual rights. While none of these bills have moved so far this session, four in California, Illinois, New Jersey, and New York are still pending. If enacted, many of these provisions would add sentence enhancements for the battery of a pregnant woman under the state’s domestic violence laws (Illinois, Oklahoma, New York), others would add enhanced penalties for harming a pregnant woman to the state’s sentencing guidelines (California, Rhode Island, West Virginia). Finally, the bill pending in New York would extend the definition of a hate crime to an offense committed in whole or in substantial part due to the belief that a person was pregnant.

C. Wrongful Death

Also this session, the Center tracked bills that sought to allow wrongful death actions to be brought on behalf of a fetus. These provisions seek to add the unborn to the definition of who can bring a cause of action under a state’s general wrongful death statute. Notably, of the seven bills introduced this session (in New York, Oklahoma, South Carolina, Virginia, West Virginia), all but one (Indiana) propose to amend the wrongful death statute to include "an unborn child" from conception onwards. The New York bill is still pending. D. Policing Pregnant Women’s Behavior

Since January, the Center has tracked bills that would allow civil intervention and, in some instances, criminal prosecution of women for using illegal substances during their pregnancies.

The Center tracked fourteen bills in ten states that would allow criminal prosecution of pregnant women for using illegal substances, and in some instances alcohol during their pregnancies. While none of these measures were successful, several were quite severe, allowing for the felony prosecution of women who use illegal drugs during pregnancy. A Washington measure would have also made it a felony offense to ingest alcohol during pregnancy. None of these measures are still pending.

In addition, twelve civil measures were introduced in six states since January. Of these twelve bills, four passed one house in Louisiana, Pennsylvania, and Washington and two were enacted in Alaska and Louisiana. The new Alaska law requires healing arts practitioners to report all instances where a child has been adversely affected or is withdrawing from exposure to controlled substances or alcohol to the state officials. In Louisiana, a measure was enacted which adds the unlawful use of controlled substances by a pregnant woman to the definition of prenatal neglect. The new law also allows physicians to order toxicology tests on an infant without the consent of the parent or guardian, though a positive toxicology test cannot be used for criminal prosecution. Two New York measures are still pending which aim to broaden the scope of child abuse and child neglect to include infants born drug-positive.

Finally, the Governor of Indiana signed a bill into law that calls for a Department of Health study on the use of drugs, alcohol and tobacco among women during pregnancy. The study will also focus on programs currently available that assist pregnant users of alcohol, drugs, and tobacco and determine gaps in the options available to pregnant women who suffer from addiction. Another measure passed one house in Washington before adjournment which requires opiate substitution treatment programs to disseminate information to pregnant clients concerning the impact that opiate substitution may have on their babies.

VII. 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 2006 session, and newly enacted and vetoed laws will be posted on our website.

[1] As of August 1, 2006, five states, Massachusetts, North Carolina, New Jersey, Michigan, and California are in session. An additional two states are still in session but are on recess (Pennsylvania resumes regular session on September 7th and New York on October 16th). Arkansas, Montana, Nevada, Oregon, and Texas did not hold a regular session in 2006. All other states have adjourned for the 2006 session.

[2] Roe, 410 U.S. 113 (1973)

[3] Webster, 492 U.S. 490 (1989)