The advent of the AIDS epidemic in the 1980s spurred states to reevaluate their sex education policies and, in some cases, expand their requirements. Most states require that public schools teach some form of sex or STI/HIV education. Most states, including some that do not mandate the instruction itself, also place requirements on how abstinence or contraception should be handled when included in a school district’s curriculum. This guidance is heavily weighted toward stressing abstinence; in contrast, while many states allow or require that contraception be covered, none requires that it be stressed. Further affecting whether students receive instruction on sex or STIs/HIV are parental consent requirements or the more frequent “opt-out” clauses, which allow parents to remove students from instruction the parents find objectionable.

Compared with abortion issues that have grabbed significant media and public attention, state requirements governing private insurers’ coverage of abortion have, by and large, remained below the radar screen. A handful of states prohibit private insurers from covering abortion services, except in cases of life endangerment; more extensive coverage may be purchased at an additional charge. Lawsuits challenging these restrictions have had mixed results: In 1986, a federal appeals court invalidated Rhode Island’s requirement that private insurers exclude coverage of most abortions; in 1992, however, a federal district court upheld a similar Missouri statute. More often, states have banned abortion coverage in public employees’ insurance policies or in other cases where public funds are used to insure employees. These policies range from prohibiting coverage for abortion services altogether to offering coverage only when necessary to preserve the woman’s health and life or in cases of rape, incest or fetal abnormality.

Over the past decade, several states have moved to make ultrasound part of abortion service provision. Some laws and policies require that a woman seeking an abortion receive information on accessing ultrasound services, while others require that a woman undergo an ultrasound before an abortion. Since routine ultrasound is not considered medically necessary as a component of first-trimester abortion, the requirements appear to be a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion. Moreover, an ultrasound can add significantly to the cost of the procedure.

Since the late 1980s, policymakers have debated the question of how society should deal with the problem of women’s substance abuse during pregnancy. No state specifically criminalizes drug use during pregnancy. However, prosecutors have attempted to rely on a host of criminal laws already on the books to attack prenatal substance abuse. Only the South Carolina Supreme Court has upheld such a conviction, ruling in Whitner v State that a woman’s substance abuse late in pregnancy constitutes criminal child abuse. Meanwhile, several states have expanded their civil child-welfare requirements to include prenatal substance abuse, so that prenatal drug exposure can provide grounds for terminating parental rights because of child abuse or neglect. Further, some states, under the rubric of protecting the fetus, authorize civil commitment (such as forced admission to an inpatient treatment program) of pregnant women who use drugs; these policies sometimes also apply to alcohol use or other behaviors. A number of states require health care professionals to report or test for prenatal drug exposure, which can be used as evidence in child-welfare proceedings. Finally, a number of states have placed a priority on making drug treatment more readily available to pregnant women.

Chart of state policies on access to emergency contraception.

Over the past 30 years, states have expanded minors’ authority to consent to health care, including care related to sexual activity. This trend reflects U.S. Supreme Court rulings extending the constitutional right to privacy to a minor’s decision to obtain contraceptives and concluding that rights do not “come into being magically only when one attains the state-defined age of majority.” It also reflects the recognition that while parental involvement is desirable, many minors will remain sexually active but not seek services if they have to tell their parents. As a result, confidentiality is vital to ensuring minors’ access to contraceptive services. Even when a state has no relevant policy or case law, physicians may commonly provide medical care to a mature minor without parental consent, particularly if the state allows a minor to consent to related health services.

A majority of states require parental involvement in a minor’s decision to have an abortion. In light of two U.S. Supreme Court rulings that prohibit parents from having absolute veto over their daughters’ decision to have an abortion, many states require the consent or notification of only one parent, usually 24 or 48 hours before the procedure. Many parental involvement requirements also include a medical emergency exception and a judicial bypass procedure, through which a minor may receive court approval to obtain an abortion without parental involvement. Not all states adhere to this model. On the more stringent end of the spectrum, a handful of states require the consent or notification of both parents. On the other end, several states allow grandparents or other adult relatives to be involved in place of the minors’ parents, or as in Maine the law allows a minor with the guidance and counseling of an abortion provider to consent to the procedure. In cases of neglect or abuse, some states waive the consent or notification requirement altogether. State court decisions have also contributed to the diversity in requirements: Some state courts have enjoined laws they conclude violate their states’ constitutions; at the same time, similar or even more restrictive laws remain in effect in other states.

Over the past 30 years, states have expanded minors’ authority to consent to health care, including care related to sexual activity. The great majority of states and the District of Columbia currently allow a minor to obtain confidential prenatal care, including regular medical visits and routine services for labor and delivery. Some of these states, however, allow physicians to inform parents that their minor daughter is seeking or receiving services when they deem it in the best interests of the minor. In states that lack relevant policy or case law, physicians may commonly provide medical care to a mature minor without parental consent, particularly if the state allows minors to consent to related health services.

Over the past 30 years, states have expanded minors’ authority to consent to health care, including care related to sexual activity. All 50 states and the District of Columbia allow most minors to consent to testing and treatment for sexually transmitted infections (STIs), and many explicitly include testing and treatment of HIV. Many states, however, allow physicians to inform parents that the minor is seeking or receiving STI services when they deem it in the best interests of the minor.

For the last three decades, the federal Centers for Disease Control and Prevention (CDC) has partnered with the states to collect aggregate statistics on abortions in the United States. States are not required to submit abortion data to the CDC, but the overwhelming majority do. To collect individual-level data, most state vital statistics agencies have designed a form that abortion providers use for reporting to the state.

Beginning in the 1990s, a small number of states imposed abortion-related restrictions onstate family planning funds. Some ban the use of state family planning funds to provide abortion counseling andreferrals to women who have unintended pregnancies. (However, in order to prevent the loss of federal funds, allbut one specifically allow organizations receiving funding under the federal Title X family planning program toprovide the nondirective pregnancy-options counseling and requested referrals required by the program.)Additionally, these restrictions often require strict separation between organizations providing state-funded familyplanning services and organizations providing abortion-related services. This separation may entail making theorganizations entirely separate legal entities, as well as place restrictions on sharing employees, medical suppliesand physical facilities.

While almost all insurance plans cover prescription drugs, many still do not provide coverage for the range of U.S. Food and Drug Administration(FDA)-approved prescription contraceptive drugs and devices. A number of states, however, require insurance policies that cover other prescription drugs to also cover all FDA-approved contraceptive drugs and devices, as well as related medical services. Some of these policies allow employers or insurers to refuse to cover contraceptives on religious or moral grounds. In addition, several states have limited mandates that apply to either specific types of insurers, such as health maintenance organizations (HMOs), or to coverage written for a segment of the insurance market. (Federal law requires insurance coverage of contraceptives for federal employees and their dependents; a few specific religious insurers are exempt from the requirements.)

Chart of state policies on the use of Medicaid funds for family planning services.

 

In recent years, several states have expanded eligibility for Medicaid coverage of family planning services by securing approval (officially known as a “waiver” of federal policy) from the Centers for Medicare and Medicaid Services (formerly the Health Care Financing Administration). Some states have obtained approval to continue Medicaid coverage of family planning services for women who would otherwise lose Medicaid coverage postpartum. (All states are required to fund pregnancy-related care, including family planning services, for 60 days postpartum to women with incomes up to at least 133% of the federal poverty level—far above states’ regular Medicaid eligibility ceilings.) Other states have granted coverage solely on the basis of income to individuals not previously covered under Medicaid.

While the handful of murders of abortion doctors and clinic staff have attracted much media attention, family planning clinics report that they frequently experience other serious forms of antiabortion violence. These include bombings, arson and vandalism, as well as violent protests and blockades. In 1994, the federal government enacted the Freedom of Access to Clinic Entrances (FACE) Act, which prohibits intentional property damage and the use of “force or threat of force or…physical obstruction” to “injure, intimidate or interfere with” someone entering a health care facility. States have taken two approaches designed to protect abortion providers. Some states prohibit specific activities, while others have created floating “bubble zones” of several feet around a person who is within a specific distance of a clinic; protesters are prohibited from crossing into that “bubble zone” without the person’s consent.

In recent years, a handful of states have established specialty “Choose Life” license plates. The plates cost anywhere between $25 and $70 on top of standard fees. In some cases, money generated from their sale directly supports the activities of specific antichoice organizations or crisis pregnancy centers (CPCs), which often provide biased and medically inaccurate counseling to women seeking a pregnancy test or counseling with regard to an unintended pregnancy. In other cases, the funding goes to organizations that provide services related to adoption. Many of the states with “Choose Life” license plates explicitly prohibit organizations that offer a full range of services, including abortion counseling or referral, from receiving the funds. Reproductive health activists have challenged some of these policies, arguing that it is unconstitutional for a state to endorse one political viewpoint over another, and that the funding of agencies affiliated with churches or religious organizations amounts to establishment of religion.

Recent changes in the membership of the U.S. Supreme Court have led some state policymakers to consider the possibility that Roe v. Wade could be overturned and regulation of abortion returned to the states. Some state legislatures are considering banning abortion under all or virtually all circumstances; these measures are widely viewed as an attempt to provoke a legal challenge to Roe, while other states are considering abortion bans that would go into effect in the event that Roe is overturned. And a number of states still have pre-1973 abortion bans on the books—several of which, in theory, could be enforced if Roe were ever overturned. Still other states have laws declaring the state’s intent to ban abortion to the extent permitted by the U.S. Constitution. 

 

Meanwhile, some states are moving in the opposite direction by passing laws that essentially codify the parameters of Roe. These laws prohibit any interference with a woman exercising her right to obtain an abortion before viability or when necessary to protect the life and health of the woman.

In response to apparently rare but highly publicized instances in which infants have been abandoned and sometimes left to die, every state, beginning with Texas in 1999, has enacted a provision intended to provide a safe and confidential means of relinquishing an unwanted infant. These infant abandonment measures—also referred to as “safe haven” or “safe surrender” provisions—typically follow the Texas model and allow a parent or other specified party to relinquish an infant under certain circumstances without threat of prosecution for child abandonment. Variations include limits on an infant’s age (ranging from 72 hours to one year) and the places or personnel authorized to accept an infant (e.g., hospital emergency room staff or emergency services personnel [ESP], such as emergency medical technicians, firefighters or law enforcement officers). Some states explicitly guarantee parental anonymity; others require personnel accepting an infant to inquire into the infant’s medical history.

First implemented in 1977, the Hyde Amendment, which currently forbids the use of federal funds for abortions except in cases of life endangerment, rape or incest, has guided public funding for abortions under the joint federal-state Medicaid programs for low-income women. At a minimum, states must cover those abortions that meet the federal exceptions. Although most states meet the requirements, one state is in violation of federal Medicaid law, because it pays for abortions only in cases of life endangerment. Some states use their own funds to pay for all or most medically necessary abortions, although most do so as a result of a specific court order.