2011: The year of the abortion restrictions
Yesterday I wrote about how little health-care legislation managed to move in Washington this year. After the Affordable Care Act passed in 2010, barely anything related to health could make it through a polarized Congress. I overlooked, however, one area where a lot did happen: reproductive health. There, a wave of state-level abortion restrictions that passed this year have reshaped access more than any other year in three decades.
As the above chart from the Guttmacher Institute shows, 2011 marked a sea change for abortion rights. States passed 83 laws restricting access to abortion, nearly four times the 23 laws passed in 2010. A lot of that had to do with the 2010 elections, which ushered in a wave of Republican legislators and governors. This year, the number of states with fully anti-abortion governments — in which both the governor and the legislature oppose abortion rights — increased from 10 to 15.
That cleared the way for new restrictions. Five states banned all abortions after 20 weeks of gestation; until last year, only Nebraska had such a restriction. Seven now require an ultrasound, or the offer of one, prior to the procedure. Eight will no longer allow private insurance plans to cover the procedure. A handful of states are, to this day, battling the Obama administration over whether they can bar abortion providers, such as Planned Parenthood, from receiving government funds, even for the non-abortion services they provide.
Some of those restrictions will likely prove more of an ideological statement than a practical obstacle to abortion. A small minority of abortions happen after 20 weeks, meaning that a ban on such procedures won’t touch most patients. Abortion rights supporters have not challenged the new laws, mostly for that reason: While many argue the laws are unconstitutional, they’ve questioned whether a major legal fight over a late-term abortion law affecting relatively few women is their best strategy.
But other restrictions could stand to reshape what access to abortion looks like, especially those that restrict private insurance coverage of the procedure. Prior to the health reform debate, this wasn’t really an issue: It was so little discussed that data on how many plans offer coverage is relatively sparse, although one Kaiser Family Foundation study from 2002 says 87 percent do pay for the procedure (anti-abortion groups have, however, disputed that number.)
But since the reform law passed, it’s been a hot-button issue. Americans United for Life, the country’s oldest anti-abortion organization, wrote up draft legislation on how to limit insurance coverage. Eight states now bar any private insurance plan from covering abortion and five more will limit such coverage on the exchanges, the new health insurance marketplaces that are scheduled to launch in 2014.
That’s a big shift from just two years ago, when only five states barred private insurance plans from covering abortion. Here’s what the map looks like post-health reform, courtesy of the American Civil Liberties Union (larger version here):
To be sure, Washington played a role as well. The Obama administration stood firm against Congressional Republicans’ attempts to defund Planned Parenthood and has rebuffed states’ attempts to do the same. The White House also disappointed reproductive health advocates this year when Health and Human Services Secretary Kathleen Sebelius barred the emergency contraceptive Plan B from being sold over the counter. But neither of those decisions changed anything; they maintained the status quo. States still cannot discriminate against doctors for legal services they provide; pharmacies still must keep emergency contraceptives behind the counter.
But the most meaningful fights over abortion access are, and have been for decades, fought at the state level. A lot of this has to do with Roe v. Wade, the 1973 Supreme Court case that both declared abortion to be a constitutionally protected right and gave states a fair amount of leeway in shaping access. And that means that a rise in the number of anti-abortion governors and legislators has an enormous impact on the abortion rights landscape, paving the way for laws that could shape access for years to come.