Under Attack or Fighting Back? Repro Legislation in States Across the U.S.

Attacks on abortion access don’t just occur at the federal level— in fact, by the end of 2019, 25 abortion restrictions had been passed on state legislatures around the country. While some states are working overtime to limit reproductive health and rights, some are working just as hard to protect them. To address this divide on reproductive health and rights around the country, we sit down to talk with Sophia Kerby with the State Innovation Exchange.

In Population Institute’s very first 50-State Report Card, eight states received a failing grade on their access to reproductive health and rights. This year, 21 states received a failing grade. Due to all of the attacks from the Trump-Pence administration, the grade for the U.S. dropped to an ‘F’. These harmful bills, like gestation bans, (think six-week bans or 20-week bans) have become common pieces of state legislation. States have also seen an uptick in medication abortion “reversal” legislation, which states that people opting for abortion must be told that their medication abortion can be reversed if they change their mind (which is not medically accurate and in fact dangerous). ‘Born-alive’ bills force physicians to provide medical care to a fetus that may have evidence of life after an induction even when they have no chance of survival instead of providing comfort care. This forced resuscitation may go directly against the parents’ wishes and directly against the patient-provider relationship. Bans based on the race, gender, and disability of a fetus are also popular in state legislatures around the country.

Young people experience a large brunt of harmful state legislation. This includes parental consent laws, which don’t allow minors to access abortion care without the notification or consent of a parent. It is rooted in a falsehood that young people are unable to make these decisions for themselves. These laws carry consequences that may be outside the realm of immediate understanding; this legislation impacts young people who may have unsupportive or abusive parents and prevents undocumented families from access the care that they need.n Restrictions on abortions later in pregnancy prevent people from accessing care when they are diagnosed with a fatal fetal abnormality or find out other information that may influence an abortion later in pregnancy. TRAP laws, like mandatory waiting periods, compound difficulties in accessing abortion later in pregnancy. 

It isn’t all bad for reproductive health and rights in states! In 2019, there were 147 proactive pieces of legislation passed at the state level. That is the highest amount of positive legislation in the past 5 or 6 years. These pieces of legislation include protecting access to abortion care, anti-shackling legislation (which protects incarcerated pregnant folks), increasing the scope of who can provide abortion care, and policies that support maternal health outcomes. 

Links from this episode

State Innovation Exchange on Twitter 
State Innovation Exchange on Facebook 
Population Institute’s 50-State Report Card
The Trump Administration is Reshaping the Federal Judiciary podcast episode

Transcript

Jennie: Welcome to RePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Hi everyone and welcome to this week's episode of RePROs Fight Back. I'm your host, Jennie Wetter. I hope everybody has had a wonderful International Women's Day. That was this past Sunday. I spent it tabling at a conference for podcasts, so I got to talk to a lot of people about the podcast, which is always a lot of fun. So this week's episode we're going to be talking about state level attacks on abortion access and also what states are doing to protect abortion access. Because right now you're really seeing a divide in the US and what states are doing and people's ability to access reproductive health care. To reinforce that, I'm going to talk a little bit before we start the podcast about the 50-State Report Card on reproductive health and rights that I publish as part of my job at the Population Institute for the last eight years. We have done a report card looking at what states are doing on reproductive health and rights and measuring them against each other and then also giving a national grade. The 2019 report card just recently came out, so it seemed like a good time to do a quick little check in on that. So as you will hear in today's episode, things are not looking great at the state level. When we first did the report card eight years ago, we gave nine states a failing grade and this year's report card we had 21 states receiving a failing grade-- and maybe you've been following what's been happening. That's not super surprising. There've been a lot of attacks on reproductive health on many different fronts. What was also most concerning this year is this year for the first time we had to drop the US grade to an F as well, and with all of the attacks from the Trump Pence administration really just only made sense. You know, in the last year we saw the Title X domestic gag rule restrictions going into effect. You also have seen the administration attacking sex education and really pushing sexual risk avoidance, also known as abstinence, only also known as not effective and not evidence-based. The other thing that is really concerning, and we talked about a while ago and it's probably time to have a wrap on, is the way that the Trump Pence administration is reshaping the federal judiciary. So it's not just the Supreme Court we have worry about, it's all of the lower federal courts as well. So hearing challenges on reproductive laws that were passed or any on LGBTQ rights. You know, a lot of these courts are getting more conservative because of the number of Trump appointed judges. So you know, some of this is going to be have ramifications for decades to come, particularly the judges. The Trump administration has really appointed a lot of very young white male judges to the bench. So it's going to be very anti-choice. And I know that kind of goes without saying, but just to reinstate, they're very anti-abortion and so that could really affect people's ability to access reproductive healthcare for a long time. So you can check out the report card on our website at populationinstitute.org /reportcard and you can look and see how your state is doing and see all the other states. I hope you all get a chance to check it out. Okay, now to this week's episode, right, I'm talking to Sophia Kerby with the State Innovation Exchange. So I hope you enjoy our interview.

Jennie: Hi Sophia. Thanks so much for being here.

Sophia: Hi Jennie. Thanks for having me. I'm really excited to talk about what's happening in the states.

Jennie: I feel like we focused a lot on a national level of conversation and a lot of the action is happening at the state level, but yes, tons is happening at the state level.

Sophia: State legislative sessions have just opened, so most are a couple of weeks into it. But yes, lots definitely happening at the states.

Jennie: So we're going to end positive talking about the good news coming from these states. But let's start with the bad news and some of the negative uh, actions or trends we've been seeing at the state level. Do you have a particular one you want to jump in on first?

Sophia: Well, there's lots happening so I'll, I guess I'll start with focusing on just abortion bans, which we saw pretty heavily in 2019 and we're seeing a little bit in 2020 and can you know, consider it to anticipate in continuing. But states are definitely focusing on restricting pregnancy at different points throughout pregnancy. So whether that's a six week ban or a 24 week ban, we definitely see states having an even larger focus than they have in previous sessions on restricting abortion later in pregnancy, which has unique challenges for patients. We're seeing definitely an uptick in restrictions around abortion medication reversal. That forces physicians to tell their patients that they are able to stop an abortion after receiving abortion inducing drugs, which is very dangerous.

Jennie: Yeah, I mean I think that's definitely worth like pausing for a second because like a study being done to see if this was even like an actual thing had to be stopped because patients' lives were at risk.

Sophia: Yes, exactly. And soI think what we miss is a lot of these restrictions-- while are often said in the name of trying to protect women or trying to protect our access to care-- is actually forcing physicians to say medically inaccurate information. It's forcing physicians to go against their best judgment and to go against their oath of doing no harm and putting folks in a really difficult place. Jennie: Yeah, that's a really hard place to put doctors to do something they don't agree with

Sophia: Completely, completely. And you know, medication reversal laws are not the only policies that are forcing physicians to go against their best medical judgment.

Jennie: Right. So we're also seeing an uptick in quote unquote born alive bills, which…

Sophia: Oh yes, everyone is seeing those left and right. So they would force physicians to provide medical care to a fetus in the event that after induction they had evidence of life, which …for some folks concerns we really complicated and wonky. But at the end of the day, for example, let's say that a patient discovers with their physician that they are carrying a fetus that has a fetal anomaly, right? And so that means that once that fetus is born, their, their time of life is very limited. Maybe a couple of hours, maybe a couple of days. Right? And so that patient, that physician might decide, okay, I choose to and do labor induction, which a patient would be induced like any other pregnancy and the physician would provide comfort care for as long as that baby is with their parents and able to provide loving and compassionate care and for the duration of that baby's life, born alive bills would make that type of love and compassionate care illegal. So a physician would be forced to provide resuscitation or any type of other support to try and revive that baby even though that's against the patient's wishes. And again, directly against that really important patient-physician relationship where they're making decisions together. About the type of care they want to provide for their, throughout their pregnancy.

Jennie: Yeah, that's definitely one that we're seeing pop up. I mean it's being debated in the Senate very soon or actually by the time this comes out because it'll be early March, it might have already happened. So it's one of those that is the like emotional talking point that sounds that the right really loves to like try it out like that they're killing babies when they're born and not digging deeper into it. You know when you're talking about gestational limits, the same with like the so called heartbeat bands, right? Like it sounds, it's like the emotional pull instead of looking at the actual facts.

Sophia: Completely. And I think that at the end of the day, any restrictions that are focused on abortion, there are focused on regulating how's someone is choosing what to do with their body is all rooted in power and control. The same states that are aggressively a pet passing abortion restrictions are the same states to have really, really poor maternal health outcomes. So it's not, these aren't, you can't say that it's about protecting women's health because it blatantly isn't.

Jennie: Right. The same States that are heavily restricting abortion, other reproductive care are the same ones that have no policies to support working families or policies that support that fetus or that potential child once it comes to life. Sophia: Right. So there are, there, there is no indication that these policies are actually helpful medically that they do anything to protect a person's health and it's clear based on other policies that are being passed that it actually isn't about supporting families and supporting women. It's really about control and power.

Jennie: Yeah, no that's the bottom line. Um, you know, and I think again that goes into another trend you're seeing, which is bans on the reason why people are having an abortion.

Sophia: Yeah. Which again often rooted in power. Some of them rooted in racist stereotypes. Yes. We've definitely seen an uptick in recent bans as well, which, which would restrict why a person chooses to get an abortion. We see recent bans popping up based on race of the fetus, based on gender of the fetus and based on disability of the fetus. And again, someone's home language that we often hear is, “well those are not real reasons ,why is that a reason to a ban?” How can someone make that decision, that choice and ultimately why someone chooses to have an abortion is no one's decision outside that individual and that and whomever that person decides to consult on their decision.

Jennie: Right.

Sophia: And I think particularly for reason bans, they're targeting specific communities who physicians then have to make assumptions on who they think would have an abortion based on race or who they think would have an abortion based on gender. And that really, really targets people of color. Bans in my opinion are really a slippery slope as to controlling why it's okay for someone to have an abortion. If we say, okay, we understand that it's a difficult decision and let's for argument's sake say that people are starting to feel more comfortable with, okay, well I actually don't think you should be able to have an abortion based on gender. Well, what's the trickle-down effect to that? Are we then going to say that, well, we don't need to be economically stable in order to bring in a happy and healthy child into this world. So that is no longer a reason why it's okay to have an abortion. Again, it's so deeply rooted in power and control over why a person decides to make a decision for themselves. And it's not about the healthcare at all.

Jennie: Yeah. It's like this myth that there's a good reason and bad reasons.

Sophia: Exactly. It's just your reason. There was no good or a bad reason to have an abortion. It's just a person's individual choice.

Jennie: Absolutely. And I think, and you know another group that we had talked about before we started the interview was young people are also being targeted again.

Jennie: Yes. Yes. So actually, by the time this podcast comes out to have already happened, unfortunately or very likely, but Florida is actually hearing a parental notification bill today on their house floor. And so if it advances, it will require at least one parent to, um, to be involved with a minor receiving an abortion.

Sophia: I think parental notification laws in general have various degrees. Either they can dictate a parent being just notified or having to give explicit consent. It varies based on that has to be a notarized documentation from a judge. And so it varies depending upon the legislation and the bills. But ultimately, again, I think it's rooted in this falsehood that young people are unable to make decisions for themselves, that they must have additional support. And the reality is that the vast majority of young people who choose to access abortion or doing that in consultation with an adult figure in their life, I think particularly parental notification laws have other consequences and other barriers that we might not think of. You're assuming that a young person is in a household with a an adult or with a guardian that they feel safe, that they feel comfortable, that they're able to go to that type of legislation also puts families who are undocumented or in a mixed status household or at risk because they then have to engage with the government in order to access care for their child, which also has implications. It's really multi-layer and again, it's forcing communities whom have the least amount of resources to go through all these hoops in order to get the care that they deserve in some of the hoops that get created are quite high for, for anyone. But particularly for maybe young people who haven't had to deal with having to, you know, find someone to go to court and like get a judicial bypass.

Jennie: And sometimes it's not even that easy. There's like extra hoops. So you know, it's a lot to navigate for anyone.

Sophia: Yes, it's a lot to navigate for anyone, let alone asking a young person who may or may not be in school, may or may not also be juggling a side job. We're asking folks to jump through unimaginable barriers to get the care that they need.

Jennie: I think one other thing that I'd mentioned earlier, but we haven't dived deeper into is restrictions around later in pregnancy.

Sophia: So yes, looking at restrictions that are 20 weeks to 24 weeks have been getting much more attention. They definitely didn't in 2019 but they anticipate them getting more attention in 2020. I think there's lots of debate over why, again, we're coming back to this reason why someone would get an abortion that late in pregnancy and there's actually lots of reasons why. One is that there are already so many restrictions in their state that it makes it that much more difficult for them to get an abortion so that delays the process. Or two, they have new information that they did not know prior. So if you were in a state that has a 24 or 48 hour waiting period, then you have to figure out how to take off time off work to meet those multiple appointments and that might delay your, your ability to get an abortion earlier in pregnancy. If you're trying to save money and with every week that you, that your pregnancy continues, the cost goes up astronomically. So, with each additional weekend, every additional barrier that a patient has to pass to jump through, that's more money that they then have to figure out how to access in order to get their care. You're assuming that someone even has the transportation that they need to get to a health clinic.

Jennie: But if your closest clinic is a hundred miles 150 miles, 200 miles, you need to have access to a car for quite a period of time in order to even get in the door and you’re lucky if you only have to make that trip once.

Sophia: Yes, exactly. So there's all these additional restrictions compounded in a number of sates that might delay a person's ability to get abortion earlier in pregnancy. And then the second is that you have new information that maybe you didn't, you didn't know before. So what if someone loses their job or finds out that they are, you know, they get new information that shows they are not as financially stable as they thought they would be in order to, you know, be able to support, support their child. That might change their decision because that's new information. What if you are going into it thinking that you have family support or you have an additional support system or structure and at some point throughout your pregnancy that is no longer an option for you. That is new information that a person might consider and need an abortion later on in their pregnancy. We often will see the diagnosis of fetal anomalies later on in pregnancy and that is new information that might impact a patient's ability to get an abortion early in pregnancy. So there's tons of reasons. The percentage of folks who get an abortion later in pregnancy is pretty small, but still there's tons of reasons as to why that care is necessary and needed.

Jennie: And I think also worth just like putting a pin in when we're thinking of state trends. Ones that have been going but have kind of maybe paused a little bit is the TRAP laws, so targeted regulation of abortion providers, and by the time you're hearing this, the Supreme Court case, June Medical Services vs. Gee will have been argued and there is a real possibility that with the change in the makeup of the courts, they could make a really bad ruling and you could see a huge uptick and new sets of TRAP laws.

Sophia: Yes, definitely. I mean the upcoming Supreme Court case that we're going to hear arguments in early March, I believe March 4th and have a foul decision at some point in June. We'll have serious consequences on folks’ ability to access care, particularly in states or parts of the country where there aren't that many clinics to begin with. Adding additional restrictions on physicians, access to provide care is quite frankly going to harm those most who are poor, who are undocumented, who are in rural parts of the country. Those are the folks who are going to be targeted the most because they're the ones who are going to have to travel even further and jump through even more barriers.

Jennie: So we just released our 50-State Report Card so you can see like the states that are failing and they're all together, right? So it's not like even thinking, okay, you won't have to go. You can just go to the next state. Like if your state has one clinic and the state next to you has one clinic, all of a sudden you have nowhere to go.

Sophia: Yeah, I mean these are real barriers and as the Supreme Court had ruled before, a real undue burden on people trying to access care. So it's, it's scary to think that, you know, people often frame it around Roe and like Roe will still be the law of the land, but if you can't access your right does, do you still have that right? Like it doesn't matter at that point if you can't go somewhere to, to use it completely.

Jennie: And for many people, Roe has never been accessible to them.

Sophia: Right. They've never had access to care depending upon where they are in the US and in the type of access and barriers they're facing. But particularly with, with what you mentioned, the states that are extremely limiting access to abortion that have maybe one clinic per state that's also having a compounding effect on neighboring states. So you have patients from Georgia who need now need to go to Florida and vice versa. And that's really having an impact on state's economic budget. That's putting additional restraints on state’s internal health care system, that's putting additional restraints on clinics in general because you're, you now have to manage the patients in your state and you have to anticipate folks coming from other states and that's happening an impact as well.

Jennie: Okay. I feel like maybe we've hit the bar for doom and gloom, like maybe we should turn to good things happened last year.

Sophia: Yes, there were things has trends.

Jennie: So let's talk about that. Like for the first time in a long time there were more positive things passed, right?

Sophia: Yes. So in 2019 we saw, I believe 147 active legislation passed at the state level and almost all 50 states. So that was three times the amount when you compare it to restrictive bills that passed and that's the highest it's been in I'd say at least the past five or six years, which is incredible. And that has actually been a positive trend that we've seen the year before. There also was a significant increase in more proactive bills and restricted ones. And so while things are definitely not great in regards to access to abortion, there are a number of states that are not only pushing back against the restrictive legislation that we're seeing, but there are really fighting to advance proactive legislation. So we're seeing an increase in actually expanding protective abortion access, which is really exciting. We're seeing a focus on anti-shackling legislation, so ensuring that pregnant folks who are incarcerated are able to have as much dignity as possible while going through pregnancy and delivery. And we're also seeing which has been widely reported, thankfully an increase in policies supporting maternal health outcomes. So we're seeing increases in maternal mortality review committees or commissions. We're seeing an increase in access to doulas for folks who are going through pregnancy and other policies that are really uplifting maternal health care.

Jennie: That's so exciting. It's just so nice to see States pushing back and doing good things. I think another one that we were seeing that was exciting is expanding who can provide abortion care. A number of states passed that to ensure that it is as accessible as possible.

Sophia: Yes. So we're seeing particularly an increase in who's able to provide care that's making it more accessible in states and for patients who again might have limited health clinics, might not have the capacity or ability to drive far or don't have access to public transportation. And so particularly with an increase in technology and more access to telemedicine, we're also seeing that expansive process of being able to increase who's able to access care for patients. And then the other one and we just saw a big slew of--recently some states just got rid of a bunch of their harmful restrictions. And you're seeing other states for appealing some of their harmful restrictions they had previously passed. Yeah. So we definitely see a number of states rolling back harmful restrictions and really pushing back against bad restrictions you know, coming from 2019 and pushing in 2020--in fact recently Colorado voted down their “born alive bill” and a ban on abortion later in pregnancy. So we definitely are seeing states across the country continue to fight back.

Jennie: It's exciting cause I just feel like so long we've just been so focused on loss at the state level, right. It was always all of these new restrictions and you weren't seeing the same like… not energy cause there was definitely energy on fighting back against them but you weren't being able to see as much success of good law passing to protect access or to expand maternal health care. And it's been heartening to finally not just maybe block bad things but to see good things happen.

Sophia: Yeah, I mean the infrastructure for state organizations and state coalitions to fight back has been building and booming over the past several years or decades even. And the work has always been happening. State organizations and coalitions have always been resisting and fighting back. And I think now we're starting to see the fruits of their labor, which is incredibly exciting.

Jennie: Yes. And it's nice because you know, I think you would always hear about like a couple of the really bad states doing things. But now I think you're starting to hear more about what's being done at the state level everywhere. And not just maybe this really bad thing happened here or this one state did a good thing. You're really starting to see it breakthrough when states are doing things either way and not just like, you know, everybody knew about like when Texas had like its big slew of things, but other states were doing bad things but it never broke through and now I feel like it's all breaking through, which is exciting.

Sophia: Yeah. I think definitely a shift that we're seeing in the past couple of years is abortion access and reproductive health in general is becoming an issue that all of us are finally coming to a moment where we have to talk about, we have to deal with it. We have to figure out what part of the issue we're willing to fight and defend. And it's exciting to see so many folks from the, our presidential candidates all the way to state legislatures, really talking to defending why for them supporting abortion care and supporting access to effective care is a core part of why they're policymakers or why they're activists or why, you know, they choose to be advocates in their community.

Jennie: So you've talked about there's a lot happening in the states and a lot of great groups working at the state level, so how can listeners get involved? What can listeners do to fight back?

Sophia: Yes, there's tons that folks can do. I think the first thing I would recommend is educating yourself on the layering impacts abortion restrictions and other restrictions have on people's lives. So we talked a lot about how Roe has never been the reality for hundreds of thousands of people in this world and in the United States. And so I would encourage folks to, to read up on that. I would say Radical Reproductive Justice is a great book. I definitely would love folks to support their local abortion providers, their local abortion funds in their clinics. The amount of barriers that folks have to go through from legislative lead to protestors is a huge feat for them to really overcome it or to get the care they need. So providing love and support to folks in your community who are on the front lines. And I believe by the time this podcast is out, Abortion Provider Appreciation Day will be around the corner. I want to say it's March 13th.

Jennie: Oh great. We'll make sure to uh, have some activities for that.

Sophia: Yeah. So encourage listeners too. Reach out and support their local abortion provider who is going through, ugh, just so much stigma, so much. They're putting their lives on the line. Really they have to go through for them and their family's safety just in order to do the work that matters most, and being able to provide the care that they know their patients need. So those are some recommendations I have.

Jennie: Sophia, thank you so much. Those are all great. Those are all great recommendations. Thank you for doing this and it has been great talking to you.

Sophia: Yes, thank you for having me.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. 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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