In the first six months of 2020, the United States faced three cataclysms: the global coronavirus pandemic, the unprecedented job losses and recession, and the racist killings of Black Americans—including George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks—that sparked nationwide demonstrations against police brutality and racial injustice. State legislatures are facing an unprecedented situation as they attempt to mitigate the effects of the pandemic; contend with reduced tax revenue and budgets; and begin to address systems based on racial discrimination, including housing, employment, policing, education and health care.
In the wake of these developments, legislation on reproductive health received less attention than it has in recent years. So far in 2020, 113 provisions related to all aspects of reproductive health and rights have been enacted, compared with 151 in the first half of 2019. Counts of this year’s provisions, highlighting three main categories, follow this analysis.
As state governors responded to the COVID-19 pandemic, they affected reproductive care in a myriad of ways. Governors issued orders to protect access to health care, preserve supplies of protective equipment, and reduce exposure to and transmission of the coronavirus. In some states, these orders protected reproductive health care, while in others, governors used the pandemic as an excuse to restrict this care.
Executive orders in 23 states protected access to reproductive health care during the initial stages of the pandemic. By doing so, the governors in these states recognized that this care is essential and timely, and has a profound impact on a patient’s life and well-being. Among the state orders that protected reproductive health, some required access to obstetric and gynecologic care or reproductive care generally, while some specifically included abortion, family planning and pregnancy-related care.
Governors in 11 states, mostly in the South, used the pandemic to restrict access to abortion care by issuing orders that prohibited abortion in the name of preserving protective equipment. However, since abortion care requires little or no protective equipment and is essential to individuals’ health, courts prohibited the orders from taking effect in most of these states. Some orders were temporarily allowed to take partial or full effect; as a result, abortion care was disrupted in Arkansas, Ohio, Tennessee and Texas during the spring.
Until June, abortion restrictions were not a major focus of state legislatures in 2020. That changed when legislatures in Iowa, Mississippi and Tennessee all adopted legislation at the end of the month. The Tennessee legislature adopted the most sweeping measure by passing an omnibus abortion bill that would ban abortion as early as six weeks of pregnancy; the bill included additional bans later in pregnancy in case courts block enforcement of earlier prohibitions. The bill would also bar abortion for sex or race selection or based on a diagnosis of Down syndrome. A provider would be required to conduct an ultrasound and a fetal heartbeat test, and inform the patient that a medication abortion could be reversible (a notion that scientists have widely debunked). At the end of June, as the Mississippi and Tennessee measures awaited action by the governors of those states, 10 abortion restrictions had been enacted in 2020. By comparison, 58 abortion restrictions were enacted in the first half of 2019.
The momentum to protect abortion rights and access, which has been building over the past few years, continued in the first half of 2020. A new Virginia law repeals the state’s burdensome and unnecessary regulations on abortion clinics, allows nurse practitioners to provide first-trimester abortions, and rescinds mandatory ultrasound, abortion counseling and waiting period requirements. In the District of Columbia, a new law codifies the right to reproductive health services and prohibits prosecution for self-managed abortion.
One-third of the enacted provisions on reproductive health and rights in the first half of 2020 seek to improve the quality of and access to pregnancy-related care, including enhancing existing state committees that examine maternal mortality and providing reproductive health care for incarcerated individuals.
Maryland, New York, Virginia and Washington adopted provisions related to maternal care. Notably, a Virginia law directs the state board of health to develop regulations and processes for certifying doulas, which is a step toward getting Medicaid reimbursement for doula services. The state will also continue to allow noncertified doulas to provide maternal care. A second Virginia law requires providers to screen patients for prenatal or postnatal depression if they were pregnant in the last five years. And a new law in Maryland requires ongoing implicit bias training, developed by the state, for anyone who provides pregnancy, labor and delivery, postpartum or neonatal care.
Florida, Louisiana, New Jersey, South Carolina, Tennessee and Virginia adopted laws to improve reproductive health care for those who are incarcerated. The new Tennessee law requires incarcerated or detained pregnant people to receive prenatal care, as well as postpartum care for at least six weeks after the end of pregnancy, and to be informed of their right to such care. Prenatal care includes HIV testing and services, high-risk pregnancy care and substance use treatment. During pregnancy, appropriate meals, snacks and supplements must be provided, as well as nutritional counseling.
Maine, Maryland, Tennessee, West Virginia and DC all amended laws governing their maternal mortality review committees, which investigate maternal deaths and identify ways to reduce maternal mortality. The Maryland legislation expands the scope of the state’s program to include reviewing and reporting on severe maternal morbidity. Another Maryland law will expand the types of participants in stakeholder meetings to include those who reflect the racial and ethnic diversity of women most affected by maternal mortality in the state, as well as families and women who have been directly affected by maternal mortality and near-death, high-risk or difficult pregnancies.
Infertility and Contraceptive Coverage
In the first half of this year, Colorado and New Jersey passed laws to require private health insurance coverage for infertility services, and Maryland amended its existing requirements. The Colorado legislation was broadest, applying to infertility treatment as well as preservation of sperm, eggs and embryos, and prohibiting plans from imposing coverage limitations or copayments that are different from those imposed on other covered medical care.
In the past four years, nearly a quarter of states have implemented or amended laws on insurance coverage of contraceptives. This year, a new Virginia law requires private health plans to cover recommended preventive services—such as STI screenings and contraceptive care—without cost sharing. Since 1997, Virginia had only required health plans to offer coverage for contraceptives. New Jersey and West Virginia also improved their existing contraceptive coverage requirements.
At the end of June, the U.S. Supreme Court issued a decision striking down a Louisiana abortion restriction identical to a Texas law that was ruled unconstitutional by the Court in 2016. This decision should prevent other states from adopting admitting privileges requirements like those in Louisiana and Texas, but it leaves the door open for states to adopt other abortion restrictions.
The ruling in this case will have an impact at the state level, but the state legislative response also will be influenced by the results of the November elections, when races for 80% of state legislative seats nationwide will be decided across 44 states. The response will also be affected by legislative action on the pandemic, the recession and the struggle for racial justice. While it is unclear how abortion, contraception and pregnancy care will be addressed by legislatures in the second half of 2020 and in 2021, if history is any indicator, these issues will reemerge as priorities.
Counts of state legislation in the first half of 2020:
Reproductive Health and Rights Overall
- 1,171 provisions introduced in state legislatures on all reproductive health and rights topics
- 113 provisions enacted
- 438 provisions introduced that would protect reproductive rights or expand access to reproductive health
- 79 provisions enacted
- 282 provisions introduced that would restrict access to reproductive health or curtail rights
- 13 provisions enacted
- 108 provisions introduced that would protect or expand access to abortion care
- 16 provisions enacted
- 236 provisions introduced that would restrict access to abortion care
- 10 provisions enacted
- 114 provisions introduced that would protect or expand access to contraceptive services
- 14 provisions enacted
- 138 provisions introduced that would expand access to or improve the quality of maternal health care
- 39 provisions enacted
Information on legislation and enactments on specific topics can be found in our State Policy Update, which is updated twice a month.