Legalize it! Ban it! Abortion Legislation Across the US

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It’s no secret that abortion access and reproductive healthcare have been under attack in the U.S. recently. Some states, like New York, are currently counteracting these attacks on healthcare, while some states are leaning in and using anti-abortion legislation to their advantage. Elizabeth Nash and Megan Donovan from the Guttmacher Institute sit down with us to discuss what abortion access currently looks like in the United States, and how some states are standing up and fighting back.

In the United States today, abortion access looks very different depending on where you live. Abortion restrictions tend to spread across the south and Midwest, while non-impacted access is on the east and west coasts. These divides can also exist within a state itself, meaning access to abortion is extremely wide-ranging and varied on a state-by-state basis. Many states are trying to expand abortion restrictions and bans through legislation, while other states are in the process of pushing back by protecting abortion access.

In 2018, abortion access changed at the federal level. Justice Kavanaugh’s ascension to the Supreme Court tipped the scale in terms of abortion rights and put Roe v. Wade in danger. The 2018 midterm elections put more women in the halls of Congress than ever before, diversified the House, and increased the number of members that fight for sexual and reproductive health and rights. At the state level, only 23 abortion restrictions were enacted, but some of these restrictions and proposed restrictions were extreme.

In order to protect Roe v. Wade, some states (including New Mexico, Massachusetts, Rhode Island, etc.,) are looking to reset their legal standards to affirm the right to abortion, as New York has done. States are also examining their barriers to abortion care and repealing them. If states wanted to expand care even farther, they could further consider affordability, public and private insurance coverage, and state Medicaid funds.

We are seeing countless attacks on abortion access from the current administration and pro-choice Senate, but the new House of Representatives offers a counter narrative. They are in the process of introducing pieces of legislation that expand access to abortion, including the Each Woman Act, which would eliminate the Hyde Amendment and other restrictions on insurance, and the Women’s Health Protection Act, which would guard against many of the unnecessary restrictions on providers and clinics.

Links from this episode

Guttmacher Institute
Guttmacher on Facebook
Guttmacher on Twitter
Population Institute’s 50-State Report Card
Each Woman Act
Women’s Health Protection Act

Transcript

Jennie Wetter: Welcome to rePROs Fight Back a podcast on all things repro. I'm your host Jenny Wetter. In each episode, I'll be taking you to the front lines of the escalating fight over our sexual and reproductive health and rights at home and abroad. Each episode, I will be speaking with leaders who are fighting to protect our reproductive health and rights to ensure that no one's reproductive health depends on where they live. It's time for repros to fight back.

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Jennie Wetter: Welcome to rePROs Fight Back. In our last episode, we um, zoomed in and talked about New York's Reproductive Health Act. This week we're going to zoom out and talk about abortion access and reproductive health care nationwide and what it looks like now and what states are doing to fight back. And I couldn't think of two better people to talk to me about this than Elizabeth Nash and Megan Donovan from the Guttmacher Institute. Hi Ladies and thank you for being here.

Elizabeth Nash: Hi. Thank you for having us.

Megan Donovan: So excited to be here. Seriously.

Jennie Wetter: So before we get started, I think it's really important to take a second to introduce yourselves so that people know who's talking when you're talking.

Elizabeth Nash: So Hi, I'm Elizabeth Nash. I work on state policy stuff at the Guttmacher Institute

Megan Donovan: And hi, I'm Megan Donovan. I work on abortion access at the federal level at Guttmacher.

Jennie Wetter: So we'll start with kind of the basic lay of the land. What does abortion access look like right now in the states?

Elizabeth Nash: Abortion access looks very different depending on where you live. It depends on not only your state and your community but your familial situation. But if we're looking at the states, just imagine a map of the United States in your head and think about particularly the lower 48 where you can see that abortion restrictions have really spread across the South, the Midwest, the Plains and where we see access not so impacted where in fact there are positive things happening. We're really looking at the West coast and the Northeast and you've got a little bit of Illinois in the middle there. So access looks pretty wide ranging and varied depending on policies. But also if you look within a state, you're also thinking about divides such as urban and rural, where in a city you may have more access. And then it also depends very much on your own familial and social economic circumstances, right? So people who have resources have access to health care while others don't or have access to finances while others don't. And I would just want to say that really since 2011 the whole state legislative landscape has changed so much across really the lower 48 and it's been everything from restrictions that impede access to total bans. The important thing to know is as that has been going on, we're now seeing a lot of push back as your last podcast was all about New York and thinking about what other states are doing in that way.

Jennie Wetter: That's a great preview, so what happened last year? We saw from 2011 we saw so many attacks at the state level, but things started to change a little bit last year and maybe for the better.

Megan Donovan: That's right. So I'm going to jump in and maybe talk about a couple of things that happened last year that were sort of game changing at kind of the federal and the national level. Um, the first of course is that, uh, Justice Kavanaugh's ascension to the Supreme Court, you know, tipped the balance of the court against abortion access and abortion rights, uh, and really put Roe v Wade at risk in a even more tangible way, um, for the first time. The other thing though, I want to highlight in contrast to that is the outcome of the midterm elections. There's now a majority of members in the House of Representatives that are supportive of abortion rights. There are more women in the halls of Congress than ever before. And while there's still work to be done, uh, congress is more diverse than it has been. Those things are not a coincidence, right? You know, the electorate, uh, took note of what's been going on in recent years and, uh, took a stand for change. And so that's a really important backdrop that kind of undergirds a lot of, you know, what we'll be talking about, especially as we look ahead to what we're seeing start to happen.

Elizabeth Nash: And at the state level in 2018 we saw some of these similar changes. We saw a few states become more moderate in their legislatures, but we also saw some very conservative law makers be returned to their seats and in some governorships. And throughout 28... that was in the elections at the end of 2018 but during 2018 what was really significant about abortion policies at the state level was that, and I hate to say only, but only 23 abortion restrictions were enacted, which is a real change from what we'd been seeing in earlier years. And sort of the kicker on the end to that is that some of these restrictions are incredibly extreme. Six week abortion ban in Iowa was enacted, 15 week abortion bans were enacted in Louisiana and Mississippi. Now none of those are in effect, but really what it seemed to be doing is anticipating somehow changes at the Supreme Court. And so really also keying in to some themes that we're we're seeing in 2019 but at the same time we're seeing momentum in the other way. So we saw Washington require abortion coverage, we saw Massachusetts repeal, it's pre-Roe abortion law, and then we saw other states look around to contraceptive coverage and sex education in a really positive way.

Jennie Wetter: I really choose to see that the hope of states doing good things mostly because we so often are focused on fighting these just terrible fights to, you know, stop six week bans or like you said, 15 week bans or 72 hour waiting periods, which just is such a slog sometimes. It was so great to see for once that the positive was a outnumbering the negative.

Elizabeth Nash: Yeah, no, it was great to see that we had so many more positive, um, laws go into effect and it was everything from those abortion, um, protections to the contraceptive coverage pieces to expanding Medicaid and family planning to requiring teen dating violence education, um, and consent education in sex ed. So, and so those are just even the tip of the iceberg really on the number of 80 new proactive laws that were enacted.

Jennie Wetter: So what are states doing to protect access in light of all these threats that we're seeing to Roe v Wade?

Elizabeth Nash: Well there, you know, sort of two big buckets to start off with and then there are a bunch of other kinds of protections that can be put in place. Um, so one big bucket is the idea, the this legal standard. So very much in the vein of what happened in New York in January. And as well as, you know, we also saw something similar in Oregon in 2017 where it went a little further even than New York and simply affirmed the right to abortion throughout pregnancy and prevents government interference in abortion. So we're seeing those kinds of moves in states, right? So we're seeing other states looking to Oregon and New York states like Massachusetts, New Mexico, Illinois, Vermont, Massachusetts, Rhode Island, all of these states are looking to protect abortion rights. And obviously some of this momentum is because we have seen the change at the US Supreme Court level and those legislators are, are looking out for their own citizens. But on the other and another way, um, states could be looking to protect abortion rights, might sound a little counter intuitive, but it's about repealing restrictions and looking at what kind of barriers are in your state and repealing them. And I'd like to mention that some of these repeal bills as well as some of the protect abortion bills are pending in some pretty hostile places like Texas, Indiana, Missouri, Arizona. So these are places where the conversation hasn't really shifted and the legislature isn't really with us, but it's a way to start that conversation.

Jennie Wetter: And its important to have that conversation because a lot of these, um, restrictions are causing women to have to wait longer to have abortions, it's making it harder, uh, not just for them to get access, but for when they get access. So, you know, if they have a bunch of hoops to jump through, they might not be able to get an a, uh, early medication abortion like they might prefer. And you know, all of a sudden they get pushed into a later abortion than they would maybe choose to have.

Elizabeth Nash: Well, there are lots of ways that states can look to, um, protecting abortion rights. And Really Megan here has written some incredible pieces about the various ways that abortion can be provided, um, to meet the needs of patients.

Megan Donovan: Yeah, I think there are a ton of things that, you know, additional things that states can do to protect and expand access to care. And one way of thinking about, um, several of these things is to take steps to ensure that, um, abortion care can, uh, you know, change and adapt as the rest of medical care and the field moves forward and advances. So a couple of things I would highlight in that regard, uh, include taking steps to allow advanced practice clinicians, uh, like nurse practitioners, um, and certified nurse midwives to provide abortion care. Another thing would be to, um, take steps to allow and support telemedicine provision of medication abortion. That's a safe and effective way of providing medication abortion, and if you think about all the different ways that people are increasingly using telehealth to access health care, it just makes sense that we would be also, you know, using that as a tool to expand access to abortion care. Uh, and a third thing in that vein would be that states could also take action to create a safe, you know, legal and policy environment for self managed care. Jenny, you and I had the opportunity to talk about that in greater detail, uh, recently. So maybe I'll refer folks back to that podcast for more information. But the point here is that no one should ever be punished for seeking to end a pregnancy. And while there seem to be, there seems to be minimal, uh, health or safety risks associated with self-managed medication abortion, the risks of criminalization on the other hand are quite high. And so states can be taking efforts to, you know, clean up, uh, the laws on their books that have been used to prosecute, um, and target people who have, um, tried to self manage their care, and they can also do things to educate their community, law enforcement officials and uh, the broader health care community so that people, uh, have a supportive rather than a punitive response to self-managedcare.

Jennie Wetter: Yeah, that feels really especially important right now. I mean, we're looking at what is it now seven states that only have one clinic that provides abortion care? So increasing the amount of people who are able to provide the services, if it's nurse practitioners and midwives, that that means more people can get the care that they want.

Elizabeth Nash: Another piece of this is also thinking about young people's access.

Jennie Wetter: Oh, absolutely.

Elizabeth Nash: And thinking about how basically almost all the state laws that are around either parental parents and abortion or, or young people and abortion are punitive. Really. They require parental involvement. And so the 37 states that have parental involvement laws and there's really only one jurisdiction that truly, um, affirms the right of a young person, uh, being someone under 18 to access abortion care. And that's DC. We're right here. Um, there are two states that with a few hoops, a young person can get access to abortion and consent on their, in on their own essentially. That's Connecticut and Maine. But you have 37 states that require parental involvement and, and typically if the parent is not involved, there is this court process and that could be worked through. And the issues here are, one, laws don't legislate family communication. So when a young person says, I cannot talk to my parents about this, they have very good reasons for doing so when we need to trust them. So that in and of itself tells you that these laws are bogus. And then this idea that you have this work around through the courts, this work around has been documented time and again as being completely useless. Courts don't know what they're doing or if they know what they're doing, they can be very hostile. And at the very least this is a burdensome process on the young person. It's scary, it's intimidating and it's insulting to their decision making abilities. And so one piece of this is also to maybe repeal or modify these laws around minor's access or young people's access to abortion care and also ensure that they have the services that they need and support.

Jennie Wetter: That's great. Cause I know I've got it down, I'm not going to remember, but it was a couple of years ago, Arkansas. No, somebody was making their a judicial bypass so much more complicated.

Elizabeth Nash: Bama, Alabama

Jennie Wetter: Ah so close was working with to make their judicial bypass so much more complicated for young people where they would just virtually not be able to access it.

Elizabeth Nash: Well, yeah. That law actually allowed the judge in, in the adjudicating the case to appoint a lawyer to represent the fetus's interests and it also allowed the young person's parents to know about the hearing. So it really circumvented the whole point of a judicial bypass or a waiver from the...you're getting a waiver from the parental consent requirement. So yes, the ACLU brought a case against that and at least you know, now there isn't any sort of lawyer for, for the fetus itself.

Jennie Wetter: But I have heard good news that some states are working to fix their parental involvement laws.

Elizabeth Nash: Yes. There have been some steps in that direction. Um, certainly for some reason young people's agency when it comes to abortion has been incredibly controversial for decades. Whereas young people have the right to contraception care, they have the right to STI care, they have the right in many places to pregnancy related care, to put their children up for adoption, to have, you know, to provide medical care for their children to make lots of decisions in other words. When it comes to abortion, this country has not really affirmed that and in fact works against agency and autonomy. So, yes, it's very exciting to see when states are introducing bills that remind us, that really grant that authority back to young people because we need to trust them and they can make the decisions that they need to.

Jennie Wetter: It's always wild to me when you hear them arguing that kids aren't mature enough to decide if they can have an abortion. But the alternative is then that they're mature enough to have a pregnancy and continue the pregnancy

Megan Donovan: Inherently contradictory, isn't it?

Jennie Wetter: Right. Like just blows my mind every time. So what are some of the other things, things that states can do to access, to expand access to care beyond just abortion, but maybe even abortion?

Megan Donovan: So I think a, it's really critical that we talk a little bit about the affordability of abortion care. You know, one of the biggest barriers to, to access, uh, in the U S is affordability. If you think about it, abortion is usually an unanticipated expense and it can, you know, an abortion itself can cost hundreds or thousands of dollars. Of course. We also know that associated expenses, um, related to accessing care really up that price tag. So the cost of traveling to access an abortion, perhaps having to stay overnight, the cost of childcare, um, the uh, cost, which is not just financial of taking time off of work to access that care. So just like any other large unanticipated health care expense insurance coverage can really mean the difference between whether or not you're able to access that care and whether or not accessing that care is something you can afford or something that fundamentally jeopardizes your financial security. And yet at the federal level of the Hyde amendment bars, federal bars, Medicaid coverage of abortion, except in extremely limited circumstances. And we know that that is a huge barrier to access. There's work underway to eliminate the Hyde amendment at the federal level, but in the meantime, states can use, uh, their own state Medicaid funds to provide Medicaid coverage of abortion. 15 states have a policy to cover abortion in most or all circumstances and the remaining states can greatly improve access by adopting such policies to provide that coverage. We saw this happen in 2017, when the Republican governor of Illinois signed a bill to do just that. And then on the flip side, there's also private insurance coverage of abortion and there are a number of policies and restrictions in place that uh, hinder private insurance coverage in particular. Um, at the state level, there are 26 states that restrict private insurance coverage of abortion. So another thing states can do is follow the lead of New York, California, Oregon, and Washington that all require private insurers to provide abortion coverage.

Jennie Wetter: Great. Um, so just listening to that makes me think of one thing that I'm gonna plug just because it seems like a good fitting thing is that if you go to Population Institute's website, you'll see our 50 state report card that uses amazing data from these lovely ladies in the Guttmacher Institute. Um, but it also does have one, some of the things we measure are abortion restrictions in states, but we also do look at affordability. And one of the things we do look at is how states restrict coverage of abortion in their state um, and if they have expanded Medicaid or expanded their, uh, we haven't looked at, uh, if they allow their medicaid to cover abortion, but we look at Medicaid for family planning. You never know. We could always have the abortion one and maybe next year. But um, it's a good place to get a visual to see it. And also it also is a good visual for what Elizabeth explained at the beginning, which was seeing where the restrictions are, cause you definitely do see like the states that are failing, so are red states very much in the South and then up through the Midwest. Like it's really stark when you look at it to see the disparities between um, people's access.

Elizabeth Nash: Yeah. When you think about access to abortion, you can almost draw a straight line north to south from North Dakota, South Dakota, Nebraska, Kansas, Oklahoma and Texas. And then it sort of spreads from there. And so it really does mean that if you're living in a place like Louisiana, that right now we know there are three clinics that are thankfully open in Louisiana. But if you are in Louisiana, that's still pretty limited care. And if you had to travel somewhere, you might be talking not just across state lines but across into multiple states. So we really are talking about access being quite limited in lots of, in lots of places across the country.

Jennie Wetter: Yeah, when you really think about some of the states that only have one clinic or it's not just them, it's the states around them. And so if the Supreme Court decisions kind of flip and allows states to really force these clinics to close, you're going to have women who are going to just absolutely not be able to access abortion. There's no way they're going to be able to travel such vast distances to access care.

Megan Donovan: That's exactly right and will exacerbate what you know is already a problem in that access to care can really, um, depend upon, um, your circumstances and is more readily available to, um, people with greater resources and the ability to, the ability to travel, the ability to handle an unanticipated expense, et cetera.

Jennie Wetter: Okay. So how have we seen this kind of playing out on the federal level?

Megan Donovan: Yeah, I think that's a great question and it's probably no surprise that many of the tensions that we've kind of been identifying playing out at the state level are in many ways reflected at the federal level. So, you know, the Trump/Pence administration has made it very clear that one of its goals is to restrict abortion access and Trump's certainly fulfill the campaign promise um, when he succeeded in getting Justice Kavanaugh confirmed to the Supreme Court. This administration has also taken a variety of steps to roll back, uh, reproductive health and rights, including, um, when we talking about abortion access, including putting, um, processes in place to, uh, restrict private insurance coverage of abortion. The anti-abortion leadership in the Senate also recently doubled down on that theme when they used a procedural mechanism to force a vote on a bill that would have made the Hyde amendment, which we'd been talking about permenant and would have also, um, further restricted private insurance coverage of abortion. They were unsuccessful and that bill failed on the floor. But it still is a clear signal of that, um, a clear signal to their base that they're going to continue this fight. And of course, even more recently, the president and anti-choice members of Congress have, uh, been kind of using the bully pulpit to promote misinformation and inflammatory rhetoric about abortion really in, in an attempt to distract people from the proactive efforts that are gaining action in a, that are gaining traction in the states. So there are very real threats playing out at the federal level and, um, there are some serious potential consequences to those threats. But there's also a counter narrative to that story. You know, the House of Representatives offers an exciting, uh, contrast where we're, you know, looking forward to the reintroduced reintroduction of some significant pieces of legislation, um, to expand and protect access to abortion. These include, uh, the Each Woman Act, which would eliminate the Hyde amendment and other restrictions on, uh, insurance coverage of abortion and public programs, and also, um, prevent interference in private insurance of abortion and the Women's Health Protection Act, which would guard against many of the restrictions that have been passed over the last eight years that are focused on shutting down clinics and stopping providers from practicing a, by subjecting them to medically unnecessary, uh, requirements that prevent them from offering care. And there's strong momentum to take a real stand against the Hyde Amendment, um, and other restrictions that prohibit abortion coverage. While these bills I've mentioned, you know, won't be enacted under this administration or this congress, they've already changed the conversation at the federal level in recent years. And the pro choice majority in the house has the power to build off existing momentum and take it to the next level. So just like we've talked about with regard to proactive efforts in the states, this can really shape the conversation and lay the groundwork for years to come.

Jennie Wetter: Yeah. And I think it's also worth pointing out... so yes, the administration has been really attacking abortion and they're really inflammatory rhetoric right now is not just stigmatizing and wrong, it's also dangerous. It puts providers lives at risk. And I think we can't leave that out. And two, the administration is not just attacking abortion, they're using abortion and that's in scary air quotes to cover any number of ways that they are attacking reproductive health care. Most importantly, access to family planning services.

Megan Donovan: Absolutely. It's a wholesale, you know, attack on the spectrum of reproductive health care. Um, and abortion is one of the ways that they try to rally their base and kind of, you know, provoke, provoke backlash against progress. Um, but we're really seeing the range of rights, uh, under attack.

Jennie Wetter: And funnily enough, all those things are things that would maybe prevent the need for abortion. So comprehensive sex education, access to family planning or things that women can use so that they don't have an unplanned pregnancy. I mean, they will still happen because people are human and contraception, um, doesn't always work. So, uh, but there are important steps to take. And so fighting against, one just exacerbates the other.

Megan Donovan: I mean, at the end of the day, people have the right to the full spectrum and the full range of reproductive health care and to access care at at any point that they need it. And so people should be receiving comprehensive education about all, that includes all of their options, uh, you know, full and comprehensive access to, you know, family planning, contraceptive care and coverage and, you know, the ability to access abortion care, uh, you know, as soon as they need it.

Jennie Wetter: Okay. So we've talked about some good news and we talked about some bad news, but most excitingly good news. So we always like to end with what can listeners do to fight back. So how can listeners get involved or what can they do around these proactive efforts?

Elizabeth Nash: As we've been watching what's been unfolded over the past several weeks, specifically in, in the realm of the pushback we seen against the, the, that advancements that have been made in New York um, the bill in Virginia, what's happening in New Mexico and Vermont on, in their state legislatures right now. And we're thinking about that overlay of the US Supreme Court things feel a little tenuous, right? People, you know, and I can understand sort of that sense to kind of hunker down, right? And kind of hold on and I'm, I'm literally kind of grabbing my hands here, right? Literally kind of hold on to what you have. But this is actually the perfect opportunity for us to put forth the vision of access to abortion and what that means being, you know, available and affordable and without stigma and we need to hold onto the momentum and support all of those efforts. And it can be everything from your, you know, people's activism and advocacy to talking to their friends. And can be on any level. It can be in their community working with their abortion fund or their travel fund or their state legislature or nationally. And even making the connections between all of these things that if you're working on the local level, making the connection with the national level and vice versa. Because really what we don't want is what we've got. We've got a situation where Louisiana doesn't look like California and California doesn't look like Maryland. What we want is for people to be able to get the care that they need and when we band together, we're unstoppable.

Jennie Wetter: Is there anything more to say to that? I mean, that's perfect.

Megan Donovan: I've just got two big thumbs up.

Jennie Wetter: Um, well thank you Megan and Elizabeth for being here today. I think this was a great conversation to look at what's happening in the states and a lot of the positive work that is happening and can, um, continue to go forward.

Megan Donovan: Thank you. It's been really fun talking with you.

Elizabeth Nash: Yeah, it's been great and thank you and thank you to all your listeners.

Jennie Wetter: For more information, including show notes from this episode and previous episodes, please visit our website reprosfightback.com. You can also find us on Facebook and Twitter at rePROs Fight Back. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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