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States Forge Ahead on Abortion and Birth Control Legislation

U.S. News & World Report logo U.S. News & World Report 5 days ago Susan Milligan
CHICAGO, IL - FEBRUARY 10: Demonstrators protest in front of the Thompson Center to voice their support for Planned Parenthood and reproductive rights on February 10, 2017 in Chicago, Illinois. On February 11, rallies are scheduled to be held outside of Planned Parenthood clinics nationwide to call on Congress and President Trump to pull federal funding from Planned Parenthood. (Photo by Scott Olson/Getty Images) © (Scott Olson/Getty Images) CHICAGO, IL - FEBRUARY 10: Demonstrators protest in front of the Thompson Center to voice their support for Planned Parenthood and reproductive rights on February 10, 2017 in Chicago, Illinois. On February 11, rallies are scheduled to be held outside of Planned Parenthood clinics nationwide to call on Congress and President Trump to pull federal funding from Planned Parenthood. (Photo by Scott Olson/Getty Images)

Foes of abortion and subsidized birth control had high hopes when Donald Trump was elected president. They got a conservative Supreme Court Justice in Neil Gorsuch, confirmed earlier this year. Republicans barreled ahead with pledges to undo the Affordable Care Act, including its requirement that birth control be considered an "essential health benefit." And they promised to cut off funding to Planned Parenthood.

That hasn't unfolded quite as planned: the collapse (for now) of the Obamacare repeal bills has left Planned Parenthood and birth control coverage pretty much as is, and no abortion case has come before the high court. States, however, have stepped in to fill the void, with some passing sweeping legislation to protect access to reproductive health services and others adopting laws drastically limiting it.

Oregon is about to adopt the most far-reaching state law in the nation to mandate reproductive health coverage – including abortion – in health insurance plans, joining states that are pushing back against efforts by the Trump administration to make abortion and birth control more expensive. But in Texas? There, lawmakers this year have passed a law that bans dilation and evacuation, the most common method of second-trimester abortions, and requires tissue from an abortion to be cremated or buried. The Lone Star State is also very close to approving a law requiring women to buy separate insurance for non-emergency abortions – what one legislator termed "rape insurance" – for even private insurance plans.

The trend is partly driven by the same factor that drives states to act on myriad legislative issues: congressional dysfunction and federal government gridlock. Democrats, for example, failed to get legislation approved in 2014 to ensure women could get birth control covered in their insurance plans regardless of any religious objections by their employers. And Republicans' efforts to cut off funds to Planned Parenthood have so far failed along with their efforts to undo the Affordable Care Act.

But while some states have been moving for years to restrict abortion, Trump's election has been a legislative kick in the pants to states on the other side. With state lawmakers concerned that not only abortion but birth control access might be under federal threat, the legislators and governors are creating medical and legal oases for those at odds with the government in Washington.

"Increasing numbers of states are starting to pay attention," and are moving to codify their own laws while federal policy is in flux, says Alina Salganicoff, a health care analyst with the nonpartisan Kaiser Family Foundation. In the first half of this year alone, legislators in half of states introduced bills to retain or expand birth control coverage under insurance plans, according to a report by the Alan Guttmacher Institute. Kaiser legislative tracking shows that 28 states currently require insurance plans to cover contraceptives, meaning the benefit would be protected even if Congress undoes that requirement in the Affordable Care Act. Four of those states have laws expanding the ACA's birth control provision.

Some states expanded their laws prior to the Trump presidency. California, for example, in 2014 established the right to free birth control under the ACA; the law applies to both private plans and Medicaid managed care plans. Maryland's law, signed in 2016 and effective in 2018, eliminated co-pays for most birth control as well as vasectomies, covers emergency "Plan B" contraception and allows women to get six months' worth of birth control pills at once. Vermont's law, also signed in 2016, codifies the ACA birth control coverage in state law.

But it was the election of Trump and the retention of GOP majorities in Congress that has put reproductive rights at the forefront, activists say. In January, women in Nevada marched and then participated in "feminist road trips," with women traveling as long as 8 hours to the state capital to demand broader birth control coverage, says Kaylie Hanson Long of NARAL Pro-Choice America. In June, Gov. Brian Sandoval (R) signed legislation mandating that women be provided 12 months' birth control with no co-payment (the previous standard was three months, meaning women had to make more visits to the doctor).

The day after Trump's inauguration (and the day of the Jan. 21 Women's March), New York Gov. Andrew Cuomo announced his administration would impose regulations requiring insurers to cover medically necessary abortion and most birth control at no cost. New birth control rules in New York also allow doctors to instruct pharmacists to dispense a year's worth of birth control.

"It's been really very inspiring," Hanson Long says. While some states had already moved to enshrine parts of the ACA in their own laws, "this is something we thought [about] the day after Trump was elected," she adds. "Our members wanted to do everything they could to protect women."

The Oregon law is cited by both supporters and detractors as the most sweeping of state efforts to entrench the right to both abortion and affordable contraception. The Reproductive Health Equity Act, which Gov. Kate Brown is expected to sign soon, requires insurers to cover, with no cost to the patient, the entire gamut of reproductive treatment – contraception, vasectomies and prenatal care along with abortion, post-natal care and screenings for cancer and sexually transmitted diseases. It enshrines in Oregon the right to abortion, even if Roe v Wade is overturned by the Supreme Court, and allocates public funds for family planning services. In a provision seemingly designed to aggravate the Trump administration, the law also says the coverage applies to everyone, regardless of gender, gender identity or immigration status – meaning that even those people who are in the country illegally will get the coverage spelled out in the statute.

"All in all, we anticipate that over 100,000 Oregonians will be impacted by this bill in different way. It touches a lot of people," says Laurel Swerdlow, advocacy director of Planned Parenthood Advocates of Oregon. "What this bill does is show that Oregonians are making their choices heard. We don't want reproductive health care attacked," she adds. "We are banding together to make sure every politician here in Oregon knows we are not going to silently stand around while politicians in Washington [D.C.] try to take away our care."

The state's anti-abortion forces are appalled, saying Oregon already has virtually no restrictions on abortion, and has now taken away the last hurdle that could lead a pregnant woman to slow down and re-think her decision to abort.

"Oregon is extreme, radical in the most extreme sense of the word," says Liberty Pike, communications director for Oregon Right to Life. "What the Oregon legislation has done is take [abortion] in the opposite direction – from 'safe, legal and rare' to 100 percent cost-free," she says. "Now there's no reason [to reconsider abortion] if the financial component is completely removed."

Meanwhile, other states are indeed moving in the opposite direction of places like Oregon. In the first half of the year, legislators in six states introduced bills to ban all abortions, and lawmakers in 28 states offered legislation to ban the procedure in some circumstances, according to Guttmacher. Five states (Iowa, Texas, Arkansas, Kentucky and Tennessee) adopted a total of six laws banning or effectively banning abortion in some cases (the governor of Montana vetoed two such efforts).

Birth control is less of a direct target (Pike says the Oregon Right to Life does not take a position on the Oregon statute's birth control provisions, for example). But groups that provide birth control end up being affected by measures aimed at those which also provide abortions. Since 2015, when videos were released appearing to show Planned Parenthood seeking to profit from providing abortions (the unedited videos show that the group merely wanted to cover costs), 8 states have moved to restrict non-Medicaid public funds to family planning organizations, according to Guttmacher. Three of those states (Arizona, Kentucky and South Carolina) approved their new rules this year.

Meanwhile, the Trump administration is doing what it can without the approval of a stymied Congress. Draft regulation by the White House would expand the pool of employers which could invoke religious conscience objections to covering birth control under their employees' health plans. The rule is still being reviewed, but social conservatives hope the administration will give employers more leeway in denying birth control coverage as part of their workers' health care plans. Oregon, however, is making birth control and abortion a Trump-free zone.

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