Happy New Year! We’re a few weeks into 2024 which means for most states it’s also the start of state legislative sessions, and it’s already been a whirlwind. Legislators have wasted no time introducing and moving legislation including the good kind, the bad kind, and the very ugly kind. Although expected, we are unfortunately witnessing more of the same anti-LGBTQ+ and anti-abortion bills that we’ve seen pop up over the past few years – attempts to ban and restrict access to gender-affirming care and abortion care, bills specifically targeting young people, and bills ignoring medicine and science in favor of spreading misinformation. Let’s look at what the PRH team is tracking and what we expect to see in states this legislative session.
Abortion and “Fetal Personhood”
Since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in June 2022, which overturned the constitutional right to abortion, we have witnessed an onslaught of bills attempting to restrict abortion care and, more broadly, reproductive health care. We have said it before and we’ll continue to say it until we’re blue in the face, politicians have no place in the exam room, and people deserve autonomy over their body.
Regardless of this truth and the human rights people have, anti-abortion politicians continue to introduce bills to restrict and outright ban abortion care. There is also a continued push to establish “fetal personhood.” Fetal personhood bills are bills that attempt to legally define when life begins and attempt to give the developing embryo and fetus the same rights as people under state and federal law. These bills are unique in that there is no standard template. Instead, politicians are attempting to amend seemingly unrelated laws, including civil liability statutes like Florida’s HB651 which allows a person to claim wrongful death damages for the death of a fetus or embryo, family laws that establish child support for a pregnancy, and even laws that oversee the creation of government documents like “pre-birth certificates” for fetuses.
Anti-abortion politicians are using these strategies to control pregnant people by defining the pregnancy as having an individual set of legal rights under the law, and limiting what the pregnant person can do with their own body. Enacting more fetal personhood laws will further the criminalization of pregnant people. We already know from research that state actors are increasingly targeting pregnant people for actions they would not be otherwise criminalized for and are able to do so by treating the pregnancy as a person under the law. Politicians are trying to get more and more laws on the books that recognize fetal personhood to make these attacks seem more legitimate.
Another growing area of anti-abortion bills being introduced are direct attacks on medication abortion. For example, politicians in Oklahoma, South Carolina, and West Virginia are introducing bills to restrict the distribution of abortion medications by attacking telehealth and attempting to restrict the mailing of these essential medications within the state.
On top of introducing legislation to make it even harder to get medication abortion care, some anti-abortion politicians, including in states like Kansas and Colorado, are trying to force providers to give harmful and inaccurate information about “abortion pill reversal” to patients seeking care. Medication abortion pill reversal is not real medicine. It is a political term used by the anti-abortion movement to refer to a dangerous, medically unproven, unsafe, and not effective method.
Luckily, it’s not all bad legislation being introduced, as some of our legislative champions are being proactive and are introducing bills to protect and expand access to medication abortion care, including in New Hampshire, Wisconsin, and Washington.
Maternal Health
The legislative efforts around sexual and reproductive health care are not only limited to abortion care. Politicians are also increasingly turning their attention to policies that would help address the maternal mortality crisis. Some states have taken proactive measures to address America’s maternal mortality crisis and protect pregnant people. For instance, Hawaii recently introduced legislation to provide protections for cultural birthing practices, including doulas and midwives to practice these traditions while offering maternity care without being criminalized. This bill would enable Hawaiian citizens to freely integrate their religion and culture into their maternal health practices without being persecuted.
However, some legislators are introducing bills that hinder our ability to address existing health care inequities. For example, bills are being introduced to regulate midwives, doulas, and birthing centers. Efforts to regulate the certification and practice of these critical care providers may appear well meaning, however, these proposals have negative effects and result in harm to providers and patients by limiting midwives and doula’s ability to practice in and care for their community. In Hawaii, efforts to regulate the training and certification of midwives have resulted in the criminalization of community trained midwives. Policies such as these reflect the erasure of granny midwives – early African American midwives in the South who cared for pregnant people and were important community members, pushing out and stigmatizing trusted community members.
Fortunately, more states are also moving to expand Medicaid coverage under the Affordable Care Act. Expanding Medicaid coverage can help address maternal health by expanding the eligibility criteria, allowing more people to receive health insurance and thereby access health care. In West Virginia, legislation has been introduced to extend Medicaid coverage to doula services throughout pregnancy and 180 days after delivery. In Kansas, Governor Kelly has proposed Medicaid expansion in her proposed FY25 state budget. Medicaid coverage is crucial to help individuals and families receive comprehensive, long-term health care and serves a role in improving America’s escalating maternal mortality crisis.
Reproductive Health Care Data and Privacy
Following the Dobbs decision, there has been a call for increasing protections for reproductive health care data privacy. While laws like HIPAA exist to protect some health information, unfortunately there are gaps and exceptions which allow third parties and in some cases law enforcement to access private health care information. As a result, legislative efforts to protect or increase access to an individual’s health care data is an area of growing interest. Last year we saw the first set of states enact legislation aimed at protecting patient and consumer health care data. More states are introducing and will likely move forward policy proposals to protect patients from having their health care data unknowingly stored, sold, or accessed by law enforcement with their prior informed consent. Efforts to protect health care data don’t stop at proposals to protect medical records but also to protect our personal consumer data, including health applications on mobile devices.
Young People: Access to Information Online & Contraception
Under the guise of parental rights, young people are facing attacks across a growing number of issues related to their autonomy. We are specifically monitoring proposals to restrict young people’s access to information online and attempts to restrict their access to social media. These bills tend to include provisions relating to website age verification requirements as opposed to outright banning specific websites. While it is unclear how proposed legislation may be interpreted, PRH is monitoring for consequences that would impact access to information about sexual and reproductive health care such as sexual health education, abortion, gender-affirming care, gender-identity, and sexual orientation, and more. For young people, access to online information and resources may be a critical source of support. The anti-abortion movement is continuing their ongoing efforts to restrict sexual health education as we continue to see a flurry of bills pushing for abstinence-only sex-education and limitations or bans on discussing gender-identity and sexual orientation.
We are also tracking threats to young people’s access to health care. Following the anti-abortion playbook of attacking young people’s access first, state legislators are now introducing bills to limit young people’s access to contraception. In West Virginia, politicians have introduced a bill that will require providers to notify the parents of a young person when they provide contraceptive care. Politicians in South Carolina are pushing a bill that would require parental involvement and consent for young people to obtain prescriptions.
Gender-Affirming Care
As expected, anti-LGBTQ politicians are continuing to push for bans on gender-affirming care for young people and some are even pushing for bans on care for adults. Gender-affirming care is safe, lifesaving health care that is supported by leading medical organizations that allows for transgender and gender diverse people to be able to live their full and authentic lives. Despite this support, state legislators are continuing to introduce more legislation attacking young people’s access to care, including legislators in Wyoming, Virginia, and Washington outright banning all forms of gender-affirming care for minors. State legislators are also introducing bills to hinder access to care by requiring certification from multiple providers and time restrictions before care can begin or continue. In addition to regulating the practice of medicine, legislators in states like Oklahoma and West Virginia are also proposing funding bans in both private and public health insurance. Even more despicable, legislators are trying to force patients to “detransition” and for insurance policies to cover so-called detransition.
Similar to the anti-abortion movement, some state government agencies are also leveraging their authority to propose regulations through Departments of Health or Boards of Medicine to restrict gender-affirming care. This process circumvents the legislature and puts the authority of care into the hands of regulatory boards. For example, Ohio Governor Mike DeWine proposed restrictions to gender-affirming care in his Executive Order earlier this month and the Ohio Department of Health has proposed new rules to restrict gender-affirming care.
Thankfully, some state legislators are setting up to protect access to gender affirming care and abortion care, recognizing the importance of ensuring people’s access to all forms of health care. For example, legislators in Maryland, Virginia, and Washington have introduced legislation that would create protections for abortion care and gender affirming care within their state.
Ballot Measures
Finally, we can’t forget about reproductive rights ballot measures. State constitutional amendment ballot measures are moving forward as one of the tactics to increase access to care as the legal landscape continues to shift in the wake of the Supreme Court’s decision in Dobbs. This year we are expecting a growing number of states to pose the question to voters of whether to establish a constitutional right to abortion in their state constitution. States already moving forward with ballot measures include Maryland and New York. Many more states have filed ballot language for approval from their respective state approval board and others are in the thick of collecting signatures to place the issue on their ballot. We will be watching this area carefully as no two states are the same – the proposed ballot language and its impact on existing state law will vary state-to-state.
With thousands of bills filed across the country this preview does not capture every type of reproductive health bill out there. This is going to be another busy year of fighting back against anti-bodily autonomy policies and pushing for protective and proactive policies to protect and improve access to essential health care. We’re excited to continue being in this fight with you!
Adrienne Ramcharan
Assistant Director, State Policy
Mackenzie Darling
If/When/How Federal Reproductive Justice Fellow
Taryn Graves
Policy Assistant