US: States Try New Tactics to Restrict Abortion

Frank A. Hoffmann, a member of the Louisiana House of Representatives, is like many Republicans who hope the federal health care law is overturned. But just in case it’s not, he helped shepherd legislation signed by Governor Bobby Jindal last week that will ban abortion coverage from the one-stop “health exchange” that his state is legally required to create by 2014.

“It’s in response to the national health care law,” says Hoffmann, explaining why he introduced his measure. “Louisiana is a very pro-life state,” he says, and he represents the city of Monroe, in the especially conservative northeast corner. But his was not the only major anti-abortion measure in the Louisiana Legislature this year. Lawmakers also decided to deny medical malpractice protection to doctors who perform certain elective abortions and gave the state the authority to shut down an abortion clinic that is not in compliance with state law.

While Hoffmann’s legislation doesn’t ban abortions, it does ban health insurers that participate in the state’s yet-to-be created exchange from offering policies that cover abortions except in rare cases. Arizona, Mississippi and Tennessee all passed similar measures this year. That means a woman seeking an abortion in these states would still have access to it, but if she gets her insurance through an exchange, she would have to pay for the abortion on her own.

Nearly a dozen states approved significant anti-abortion laws this year, more than in recent years. “Some of the laws enacted this year are more extreme than we have seen in a while,” says Elizabeth Nash of the pro-choice Guttmacher Institute, which focuses on reproductive health issues and tracks state-by-state legislation.

Why was abortion such a big issue in the states this year? The simple answer is the federal health law. The national health care reform debate put a spotlight on abortion to the extent that it nearly killed passage of the entire health care bill until President Obama issued an executive order promising no public funds would be used for abortions.

Pro-life groups say Obama’s executive order didn’t go far enough. So shortly after the health care law was enacted, they started lobbying states to make sure the new exchanges don’t offer abortion coverage. Denise M. Burke, an attorney with Americans United for Life, an anti-abortion group, calls these state laws “the most notable legislative trend of 2010.” 

Revisiting Roe

There is another reason for the renewed state attention to abortion: the 2007 U.S. Supreme Court ruling upholding a ban on certain late-term abortions. That ruling signaled to many that the high court, under Chief Justice John Roberts, might be willing to reconsider Roe v. Wade itself. Nebraska may have provided an opportunity.

This year, Nebraska Governor Dave Heineman signed into law two anti-abortion bills that are considered the first of their kind. One prohibits most abortions beyond the 20th week on the grounds that a fetus can feel pain after that length of time. Most current abortion bans begin after 22 to 24 weeks. The other Nebraska law would require women seeking abortions to be screened for “risk factors” including whether they were pressured to have the procedure.

No one has mounted a legal challenge to Nebraska’s 20-week ban law yet but Planned Parenthood went to court over the new risk-factors law and a federal judge Wednesday agreed, granting a preliminary injunction. If the 20-week ban case eventually reaches the U.S. Supreme Court, it might invite the justices to reconsider the larger question of abortion’s legality.

Litigation is taking shape in other states as well. The Center for Reproductive Rights is trying to block a new Oklahoma law, enacted over Governor Brad Henry’s objections, that requires women seeking abortions to first get an ultrasound video of the fetus. Other states have ultrasound requirements, but what makes Oklahoma’s different is that the doctor must show and describe the image to the women in detail. 

Bills in bunches

The ultrasound measure is one of eight abortion-related bills that the Republican-controlled Legislature in Oklahoma approved, and one of three that survived a gubernatorial veto. Another requires women to answer a 38-point questionnaire. One of the questions asks why they are seeking an abortion. Another Oklahoma law prohibits a woman from suing a medical provider if the provider does not disclose information about the condition of her pregnancy, such as a heart ailment or Down Syndrome present in the fetus.

Like Oklahoma and Louisiana, Arizona enacted not just one or two abortion bills but several. Republican Governor Jan Brewer signed four laws this year that her predecessor, Janet Napolitano, likely would have vetoed if she hadn’t resigned to become President Obama’s secretary of homeland security. In addition to the abortion coverage ban in exchanges, Arizona put new limits on abortion coverage under state employees’ health plans and Medicaid and imposes additional reporting requirements on doctors.

One of the country’s most controversial new abortion laws comes from Utah. There, women can now be charged with criminal homicide for obtaining an illegal abortion or inducing a miscarriage, whether intentionally or through “reckless” behavior. The Utah law was prompted by a case of a 17-year-old woman, seven months pregnant, who paid a man $150 to beat her in hopes the beating would cause a miscarriage. Opponents say the Utah law is too vague and worry that women who suffer miscarriages will have to prove they didn’t cause them. Lynn Paltrow, executive director of National Advocates for Pregnant Women, calls the Utah law “reckless” and punitive toward the woman and not to those who might assist an illegal abortion.