PDF2007 Legislative Sessions in Review:

Abortion and protection of the unborn and newly born

 

By Denise M. Burke

Vice President & Legal Director, Americans United for Life

 

Without a doubt, 2007 was a banner year for pro-life Americans. The United States Supreme Court (USSC), in Gonzales v. Carhart, upheld the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. In doing so, the Court also opened the door to more meaningful and pervasive regulation of abortion, giving state lawmakers a tremendous opportunity to protect women and their unborn children from the negative impact of abortion. The decision, rendered in April 2007, had a measurable impact on the number and types of pro-life state legislation introduced this year. Importantly, it promises to have an even greater impact in the years to come.

 

In 2007, Oklahoma emerged as the "most improved" state, enacting an omnibus measure that, among other things, funded crisis pregnancy centers; amended the definition of "medical emergency" as applied to abortions; prohibited the use of public funds for abortion counseling and the use of public facilities for abortions; strengthened its parental consent law; and instituted a comprehensive system of abortion reporting. Similarly, Arkansas, Louisiana, and Missouri also had very successful years, enacting a number of measures designed to protect women and their unborn children.

 

Conversely, New York emerged as the most notable threat to the sanctity of life. At the instigation of Governor Eliot Spitzer, New York lawmakers introduced a state version of the Freedom of Choice Act, enshrining abortion-on-demand in New York law and overturning any existing protection for women and the unborn. New York lawmakers also considered measures that would force hospitals to train certain residents in abortion, targeted crisis pregnancy centers for hostile state oversight, and would force health clinics at state universities to provide emergency contraception.

 

In 2007, states like California and New Jersey continued their pursuit of largely anti-life agendas, while threats also surfaced in normally pro-life states like Kansas, where Governor Kathleen Sebelius continued to thwart efforts by legislators to limit late-term abortions and subject the practice of notorious abortionist George Tiller to meaningful oversight.

 

 

Overall Trends and Analysis

 

Several notable trends emerged in 2007:

 

Abortion

 

Approximately 400 bills related to abortion were considered by the states in 2007, a more than 50% increase from 2006. These measures included bans on abortion procedures, abortion clinic regulations, informed consent for abortion, ultrasound requirements, parental involvement for abortion, and limitations on the use of state resources to facilitate or provide abortion services.

 

Amendments to General Abortion Statutes

Oklahoma enacted an omnibus measure that, among other reforms, changed the definition of "abortion" to include use of abortifacients and amended the definition of "medical emergency" as applied to abortion-related laws, eliminating a "mental health" exception and subsequently allowing exceptions to informed consent, parental consent, and other requirements only in cases where a physical condition could cause "major impairment of a bodily function" or death. Similarly, Missouri modified its "medical emergency" exception to apply only to situations where the woman’s life or a "major bodily function" is at risk.

 

Abortion Bans and Constitutional Amendments  

At least, 27 measures seeking to ban or limit abortions were introduced in 20 states, including Alabama, Colorado, Florida, Georgia, Hawaii, Illinois, Iowa, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, North Dakota, South Dakota, Texas, Utah, Virginia, Wisconsin, and West Virginia. These measures included "delayed enforcement" laws (also known as "trigger laws"); bans on partial-birth abortion, bans on late-term abortions, and constitutional amendments declaring that the state constitution does not contain a "right to abortion."

 

Several states -- including Mississippi, North Dakota, South Dakota, Utah, Virginia, and West Virginia -- introduced measures to ban abortion once Roe v. Wade is overturned or the authority to ban abortions is otherwise returned to the states. Mississippi enacted a measure that would ban abortion except in cases of life endangerment or rape when Roe v. Wade is overturned.

 

Similarly, North Dakota enacted a measure that would make performing an abortion a felony when Roe v. Wade is overturned. The law would explicitly permit a physician to avoid conviction if the procedure is performed because the woman’s life was endangered or if the pregnancy was the result of rape or incest.

 

At least nine states -- including Iowa, Louisiana, Michigan, Missouri, Utah, and Wisconsin -- considered bans on partial-birth abortion. Many of these measures were introduced and debated in the wake of the U.S. Supreme Court’s decision in Gonzales v. Carhart and contained language virtually identical to the federal law.

 

Louisiana enacted a ban on partial-birth abortion, banning the same procedure as proscribed in the federal law. The measure provides that the banned procedure can only be used when necessary to save the life of the woman and creates civil cause of action for violations of the law. Notably, the measure contains more stringent criminal penalties than the federal law and would impose a sentence of hard labor or imprisonment of 1 to 10 years; a fine of $10,000 to $100,000; or both on any person who knowingly performs the banned abortion procedure.

 

Additionally, several states -- including Florida, Hawaii, Illinois, North Dakota, and West Virginia -- considered measures banning abortions after the first trimester or, in some cases, after viability. In a unique measure, West Virginia introduced a measure prohibiting abortions for "gender selection."

 

Legislation related to state constitutional amendments were again popular in 2007. Georgia considered a constitutional amendment declaring that life "begins at conception." Meanwhile, at least six states -- including Kentucky, Minnesota, Mississippi, New Jersey, Tennessee, and West Virginia -- considered amendments establishing that the state constitution does not provide a "right to abortion."

 

Abortion Clinic Regulations

At least 14 states considered measures regulating abortion facilities, including Florida, Hawaii, Illinois, Indiana, Mississippi, Missouri, New York, Oregon, South Carolina, South Dakota, Texas, Vermont, Virginia, and West Virginia. Florida amended its abortion clinic licensing laws, permitting rule-making under the general health facility and the abortion clinic licensing laws, repealing a provision that gave clinics a "reasonable time" to comply with any rule applicable to abortion clinic licensing, and increasing the licensing fee paid by abortion clinics.

 

More significantly, Missouri enacted a measure classifying facilities that provide five or more first-trimester abortions a year or any second- or third-trimester abortions in a given year as "ambulatory surgical centers" and subjecting them to increased health and safety regulation. In August 2007, this measure was challenged in federal district court by Planned Parenthood and enjoined pending the outcome of litigation.

 

Crisis Pregnancy Centers

In 2007, approximately one-third of the states considered measures to provide funding to organizations providing abortion alternatives, principally crisis pregnancy centers (CPCs). This was accomplished through legislation creating "Choose Life" specialty license plate programs or providing direct taxpayer subsidies to CPCs.

 

Measures related to "Choose Life" license plates were introduced in at least five states: Arkansas, New Jersey, North Carolina, Texas, and West Virginia. Under this type of legislation, a program is established under which a motorist pays an additional fee for a specially-designed "Choose Life" vehicle license plate and a portion of that fee is designated for CPCs and their programs. Arkansas enacted a measure implementing a new license plate program and directing the proceeds to entities providing abortion alternatives.

 

More significantly, a number of states enacted or renewed measures providing direct taxpayer funding to organizations providing abortion alternatives. In 2007, these states included Arizona, Kansas, Louisiana, Missouri, North Dakota, Ohio, Oklahoma, Pennsylvania, and Texas.

 

Arizona allocated $20,000 to organizations that provide "medically accurate alternatives-to-abortion services" during pregnancy and for one year following birth. The funds may not be used by organizations that provide abortions or abortion referrals.

 

Louisiana renewed its funding of CPCs, appropriating $1 million to the Department of Social Services, Office of Family Support to be used to support abortion alternatives. Moreover, the funds cannot go to entities that promote, refer for, or perform abortions.

 

Pursuant to the Missouri Alternatives to Abortion Services Program, Missouri appropriated $1.7 million dollars to promote alternatives to abortion for women at or below 200 percent of the Federal Poverty Level. Specifically, the measure allocates funds for services and counseling to assist a woman in carrying her pregnancy to term, in caring for her dependant child, or in placing her child for adoption. Funded services will be available during pregnancy and for up to one year after childbirth and can include prenatal care, medical and mental health care, drug and alcohol testing and treatment, adoption assistance, child care, and other services relating to pregnancy and parenting. None of the funds allocated can be used to fund family planning services or organizations that perform, induce, or refer for abortions.

 

North Dakota enacted a measure funding alternatives-to-abortion services and related public education activities, while Ohio allocated $150,000 over the next two years to a Choose Life fund and Oklahoma directed the Department of Health to disburse $40,000 to an alternatives-to-abortion fund.

 

Pennsylvania enacted two measures allocating $4,655,000 to abortion alternative programs. The measure specifically prohibits the organizations receiving the funds from performing abortions or providing abortion counseling and requires the recipients to maintain a strict separation from organizations providing abortion services. Similarly, Texas renewed $2.5 million in funding for abortion alternative programs. The measure also strengthened restrictions on family planning funds by requiring organizations to maintain strict separation from abortion providers.

 

In an ominous development, New Jersey, New York, Oregon, Texas, and West Virginia considered measures directly attacking or seeking to regulate CPCs. This reflected a 50% increase in such efforts over 2006.

 

New Jersey considered a measure that, in practice, could be interpreted as prohibiting the sale of ultrasound equipment to some CPCs. Meanwhile, New York considered a measure to require CPCs to disclose to clients that they will not provide abortion or birth control services; that they are not a licensed medical provider; that pregnancy tests are self-administered and may be purchased over-the-counter; and that they are not "medical facilities." Moreover, the measure would require that the requisite notice be given during the initial client communication or contact.

 

In the most direct and insidious attack on the mission of CPCs, Oregon, at the behest of Planned Parenthood Advocates of Oregon and NARAL Pro-Choice Oregon, considered a measure establishing and funding a study committee to "review the policies and procedures" of state CPCs. The legislation then proposed that Oregon fund a "study commission" that would seek to confirm its premise: CPCs are "fake clinics" that intentionally lie to and mislead women. Although the legislation was handily defeated by an educational campaign lead by national and local CPC supporters, it is, arguably, a new and provocative tactic being pursued by abortion advocates to close down CPCs and to short-circuit meaningful debate about abortion and its negative impact on women. Sadly, Oregon was not the only state in 2007 to target CPCs with legislation rooted in pro-abortion rhetoric and bias.

 

In recent years, Texas has been a great supporter of CPCs, allocating millions to support their mission. However, in 2007, some in the Texas legislature sought to subject CPCs to unnecessary state oversight, introducing five measures to regulate CPCs. The most reasonable of these measures simply delineated minimum standards for personnel, equipment, records, and management of CPCs, while the most onerous required state licensing and oversight for all CPCs.

 

Of more concern, three of the measures either directly or indirectly adopted the notion that CPCs provide inaccurate or misleading information to women and sought to specifically require that CPCs provide "medically and factually accurate" information and avoid "false advertising." Fortunately, these measures received little attention from most legislators and the public, but one can only imagine the outrage that would have resulted had the legislation instead asserted that abortion clinics were provided false or misleading information.

 

Finally, in West Virginia, three measures regulating CPCs were considered. One simply required that all CPCs institute a "quality assurance" program. However, two other pieces of legislation were more problematic, accepting as valid the pro-abortion argument that CPCs are coercive and provide inaccurate information to women. These sought to ensure that "pro-life, anti-choice, faith-based, or abstinence-only" centers provide clients with "full disclosure" about reproductive health options, contraception, and methods of abortion. One measure also specifically stated that nothing in the legislation should be "construed or interpreted to condone, permit, allow or endorse any form of coercion for a girl or woman regarding any means of contraception, abortion, childbirth, or child care."

 

Freedom of Access to Clinic Entrances (FACE)

A small number of states including New Jersey and Rhode Island considered measures "protecting" access to clinic entrances.

 

Coerced Abortions

Several states -- including Arkansas, South Dakota, and Virginia -- considered measures prohibiting any person from coercing a woman to undergo an abortion. In Virginia, the proposed measure would have made it a felony to coerce a woman into undergoing an abortion.

 

Freedom of Choice Act (FOCA)

New York introduced a measure that would enshrine abortion-on-demand in state law and wipe out all incremental protections (including protection for unborn victims of violence and the right of healthcare providers to refuse to participate in abortions). Rhode Island also considered measures to ensure continued, unfettered access to abortion if Roe v. Wade is overturned.

 

Informed Consent 

Informed consent (also known as a "woman’s right to know") measures were introduced in at least 23 states, including Arkansas, Connecticut, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New York, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Virginia, West Virginia, and Wyoming. These measures included those seeking to inform women about fetal pain and to provide them with the opportunity to undergo and view an ultrasound prior to an abortion.

 

Arkansas enacted a measure amending the state’s abortion counseling materials to include a statement that a woman’s consent to have an abortion should be given voluntarily and not as the result of coercion.

 

Measures requiring that women receive information about fetal pain were considered by at least nine states, including California, Kentucky, Louisiana, Missouri, New York, Oklahoma, Oregon, South Carolina, and Virginia. Louisiana enacted a measure requiring that a woman considering abortion receive information about fetal pain and also be given the option to undergo and review an ultrasound prior to an abortion. Specifically, the woman must be told about the availability of anesthesia or analgesics to prevent pain to the unborn child.

 

Moreover, the state Department of Health and Hospitals will revise the mandatory informed consent materials provided to women to include a statement that, by 20 weeks gestation, an unborn child can experience and respond to pain and that anesthesia is routinely administered to unborn children for prenatal surgery at 20 weeks gestation or later.

 

At least 14 states -- including Connecticut, Florida, Georgia, Idaho, Kansas, Mississippi, Missouri, New Hampshire, North Carolina, South Carolina, South Dakota, Texas, Virginia, and West Virginia -- considered ultrasound requirements for abortion. In addition to Louisiana, Georgia, Idaho, and Mississippi enacted measures related to the provision of ultrasounds for women considering abortion.

 

Georgia now requires that a woman seeking an abortion be offered the opportunity to view any ultrasound performed as part of the preparation for the procedure. Further, state-developed counseling materials will also include information on organizations that provide ultrasounds.

 

Similarly, Idaho enacted a measure requiring abortion providers to offer a woman seeking an abortion the opportunity to view any ultrasound that is conducted in preparation for the procedure. The measure also gives women the right to ask for an ultrasound, even if the provider does not routinely conduct them.

 

Finally, Mississippi enacted a measure requiring abortion providers to perform an ultrasound on a woman seeking an abortion. The woman must be also be offered the opportunity to view the ultrasound image, receive a copy of the image, and to listen to the unborn child’s heartbeat. Finally, the measure also requires that facilities performing abortions purchase ultrasound equipment.

 

Insurance Coverage

At least seven states -- including New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, and West Virginia -- considered measures limiting or expanding public and private health insurance coverage for abortion.

 

New Jersey amended its State Health Benefits plan for state employees, requiring that any contracts entered into by the State Health Benefits Commission include coverage for "obstetrical services including…abortion." Conversely, Ohio enacted a measure prohibiting abortion coverage for government employees, while Oklahoma enacted a measure prohibiting health insurance coverage for elective abortions.

 

Parental Involvement

A number of states considered measures strengthening their existing parental consent or parental notice laws.

 

At least 13 states -- including Arizona, Idaho, Mississippi, New York, North Carolina, North Dakota, Oklahoma, Rhode Island, Texas, and Vermont -- considered measures related to parental consent for abortion. In a notable development, several states sought to delineate standards for courts to use in deciding judicial bypass petitions.

 

Idaho enacted a measure requiring parental consent for an abortion. Specifically, the law now requires written consent from one parent before an abortion is performed on a minor. The consent requirement can be waived because of a medical emergency, if the pregnancy is the result of rape or incest, or if a judicial order is obtained. Mississippi imposed stricter standards for judges to use when deciding judicial bypass petitions.

 

Oklahoma amended its existing law to require a parent or guardian to sign a consent form and to provide photo identification. It also requires an abortion provider to sign a document attesting to the quality of the identification provided. The measure further requires that, in case of a medical emergency, abortion providers notify a parent or guardian of a minor’s abortion no less than 24 hours after the procedure, unless the minor obtains a judicial waiver. Finally, the measure also imposes stricter standards for courts to use in evaluating judicial bypass petitions.

 

Meanwhile, at least 16 states -- including Arizona, Connecticut, Florida, Idaho, Kansas, Montana, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, Vermont, Washington, and West Virginia -- considered measures related to parental notification for abortion. Not surprisingly, New Hampshire repealed its parental notification statute which had been the subject of several years of litigation, culminating in a 2006 USSC decision that upheld the general constitutionality of parental notice requirements and remanded the case for further review.

 

Moreover, at least two states, Mississippi and West Virginia, considered legislation criminalizing a third party transporting a minor over state lines to obtain an abortion.

 

Provider Requirements and Limitations

At least six states -- including Alabama, Indiana, Minnesota, Mississippi, Oklahoma, and West Virginia -- considered measures requiring hospital admitting privileges for abortion providers.

 

Public Funding for Abortion

In 2007, a number of states considered measures related to the use of public funds for abortion. Measures either limiting or expanding taxpayer funding of abortion for low-income women were considered in at least 15 states, including Colorado, Iowa, Maine, Maryland, Minnesota, Missouri, North Carolina, New Jersey, New York, North Dakota, Oklahoma, Rhode Island, Texas, Virginia, and West Virginia. Three states -- Iowa, Maryland, and North Carolina -- simply reaffirmed existing limitations, while Texas strengthened limitations on the use of family planning funds.

 

Iowa continues to prohibit public funding except in cases of life endangerment, rape, incest, or fetal defect, while Maryland continues to prohibit public funding except when the pregnancy is the result of incest or rape, the woman’s life is at risk, the fetus is affected by a serious abnormality, or the women’s physical and mental health is at "grave risk." Consistent with most states, North Carolina continues to prohibit public funding unless the pregnancy is the result of incest or rape or the woman’s life is at risk.

 

Meanwhile, Texas enacted a measure strengthening limitations on organizations’ eligibility for state family planning funds. Under the measure, organizations must maintain incorporation, governing structure, and bookkeeping that are separate from abortion providers.

 

Another way that states effectively limit the use of taxpayer money for abortion is to limit the use of public funds for abortion counseling and the use of public facilities to perform abortions. In Colorado, the legislature overrode the veto of a prohibition on state family planning funds going to organizations that provide abortion services, safeguarding a long-standing pro-life policy. Moreover, at least 10 states considered measures prohibiting state funds from being used to counsel for abortions, including Kentucky, Mississippi, Missouri, New Hampshire, New Jersey, Ohio, Oklahoma, Rhode Island, Texas, and West Virginia.

 

Ohio enacted a measure that prohibits both the use of public funds for abortion counseling and the use of public facilities to perform abortions. Oklahoma enacted a measure prohibiting any state or federal funds disbursed by the state from being used to provide abortion counseling unless the abortion is necessary to save a woman’s life. Physicians may, however, provide nondirective counseling on "reproductive health options." Meanwhile, New Hampshire considered a unique measure prohibiting the state from entering into contracts with Planned Parenthood, along with general prohibitions against the use of state funds for abortion counseling or referrals.

 

Reporting on Abortion

A significant number of states considered measures requiring that abortion providers report certain information, such as complications, reasons for late-term abortions, and the number of minors applying for judicial bypass, to state agencies. Moreover, in response to several high visibility cases involving investigations of and lawsuits against abortion clinics for failing to report suspected sexual abuse of minors, several states considered measures to mandate such reporting.

 

At least 11 states -- including Arizona, Hawaii, Maine, Michigan, Oklahoma, Kansas, Tennessee, Texas, Virginia, West Virginia, and Wyoming -- considered measures related to abortion reporting. Moreover, several states specifically targeted the reporting of abortion complications, including Michigan, Texas, Virginia, and West Virginia.

 

In Kansas, Governor Sebelius vetoed a provision requiring abortion providers to report the diagnosis or nature of the condition which necessitates a post-viability abortion.

 

Oklahoma now requires abortion providers to report specific and detailed information, including information on the number of women receiving state abortion counseling materials and the number of abortions exempted from the counseling requirement because of a "medical emergency."

 

Similarly, at least eight states considered measures requiring additional reporting to state agencies regarding minors seeking abortions. These states included Idaho, Oklahoma, Texas, and Wyoming. Idaho enacted a measure requiring abortion providers to report information on abortions performed on minors and requiring courts to report information on waivers of the state’s parental consent requirement, while Oklahoma now requires abortion providers to report specific and detailed information regarding minors’ abortions, including whether physicians received the mandatory parental consent, whether minors sought judicial bypass, and whether or not such bypass was granted.

 

At least four states -- Connecticut, Florida, Maine, and West Virginia -- considered measures defining abortion clinic employees as "mandatory reporters" of suspected child sexual abuse. Meanwhile, Texas considered a measure requiring DNA testing on the remains of the unborn child after an abortion on a minor girl 13 years of age or younger.

 

Spousal Notification

Rhode Island and West Virginia considered measures requiring notification of the spouse or father of the unborn child prior to an abortion.

 

 

Contraception and Emergency Contraception

 

Expanding access to contraception and abortifacients is a primary legislative goal of pro-abortion advocates. Building on the FDA’s 2006 approval of Plan B (also known as emergency contraception) for over-the-counter sale and use, abortion advocates enjoyed some success this year in mandating insurance coverage for contraception and in increasing access to emergency contraception, especially for victims of sexual assault.

 

Contraceptive Equity

At least nine states -- including Kentucky, Michigan, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, and Utah -- introduced measures to require any entity or organization providing prescription coverage to its employees to also provide coverage for contraception.

 

Oregon enacted a measure requiring health plans providing coverage for prescription drugs to also cover prescription contraceptives. Under the new law, religious employers may refuse coverage if their primary purpose is the inculcation of religious values; they primarily employ and serve people with the same values; and are nonprofit entities under federal law.

 

Emergency Contraception/Plan B

Despite the FDA’s approval of Plan B (or emergency contraception) for over-the-counter sale and use, the level of state activity related to the drug continued to be high.

 

Seven states -- including Hawaii, Minnesota, New Mexico, New York, Ohio, Oregon, and West Virginia -- introduced measures designed to increase access to emergency contraception. These measures sought to, among other things, provide financial resources to low-income women or those receiving Medicaid assistance; require insurance coverage for abortifacients; and require the state university system to provide emergency contraception in its campus clinics.

 

At least 18 states considered measures requiring that hospital emergency rooms provide sexual assault victims with information about and, in some cases, access to emergency contraception. In 2007, these states included Arkansas, Arizona, Colorado, Connecticut, Florida, Hawaii, Minnesota, Missouri, North Carolina, New York, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Wisconsin, and West Virginia. Notably, only measures in Tennessee would have provided a broad exception for religious hospitals. 

Arkansas enacted a measure requiring hospitals to provide sexual assault victims with information about emergency contraception. The measure also permits an individual provider (as opposed to an institution such as a hospital) to assert objections based on religious or moral beliefs. Similarly, Colorado enacted a measure requiring hospitals to provide sexual assault victims with information about emergency contraception. However, they are not required to provide the medication itself. The measure also permits an individual provider to assert objections based on religious or moral beliefs. 

 

Connecticut enacted a measure requiring hospitals to inform sexual assault victims about emergency contraception and to provide the medication upon request, unless there is a positive pregnancy test. Moreover, the hospital may contract with an independent medical professional to provide services related to emergency contraception. Minnesota enacted a measure requiring a hospital to inform sexual assault victims about emergency contraception and to provide the drug upon request. Hospitals are not required to provide emergency contraception if the medication is contraindicated or the woman has a positive pregnancy test.

 

Finally, Oregon enacted a measure requiring hospitals to inform sexual assault victims about emergency contraception and to provide the medication upon request. It also enacted a second measure requiring the state department of justice to pay for medical assessments of sexual assault victims (including the provision of emergency contraception) and to provide a prescription for emergency contraception if the victim is under 18 years of age.

 

A few states, including New York, introduced measures to allow certain healthcare providers (typically, nurses and pharmacists) to dispense emergency contraception without a prescription or a physician’s involvement.

 

 

Protection of the Unborn and Newly Born

 

More than 100 measures seeking to protect the unborn or newly-born or recognizing the legal status of a stillborn child were considered in 2007.

 

Protection of Unborn Victims of Violence

At least 21 states -- including Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Kansas, Massachusetts, Mississippi, Nevada, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Virginia, West Virginia, and Wyoming -- considered measures to protect unborn victims from homicide and/or assault.

 

Kansas enacted a measure including an "unborn child" (from fertilization to birth) as a possible victim of murder, manslaughter, vehicular manslaughter, and battery laws.

 

Conversely, in Wyoming, the Governor vetoed a measure that would have created the crime of "homicide of an unborn child or fetus." This new crime would have applied only when the mother was killed as well.

 

Born-Alive Infant Protection

At least three states -- including North Carolina, South Carolina, and West Virginia -- considered measures protecting infants who are born alive following an attempted abortion.

 

"Baby Moses" Laws

A number of states -- including Arkansas, California, Hawaii, Illinois, and New Mexico -- considered measures providing "safe havens" for legal infant abandonment.

 

Hawaii’s legislature overrode the Governor’s veto to enact a measure allowing a person to leave an unharmed infant no more than 72 hours old at a hospital, fire station, or police station and be immune from prosecution for child abandonment. The professional receiving the infant will be required to inquire about the child’s medical history and to provide information on social services to the person relinquishing the infant.

 

Stillbirth Certificates

A number of states -- including Arkansas, California, Montana, New Mexico, New York, Rhode Island, and South Dakota -- considered measures providing for death certificates in the case of stillborn infants (typically at or after 20 weeks gestation).

 

Arkansas, Montana, and South Dakota enacted measures allowing a woman who loses a child after 20 weeks gestation to obtain a "Certificate of Birth Resulting in a Stillbirth." The certificates will not be used in any form of statistical reporting.

 

Rhode Island enacted a measure allowing a woman who loses a child after 20 weeks gestation to seek a "Certificate of Birth Resulting in a Stillbirth." The certificate will also be filed with the state registrar.

 

Substance Abuse During Pregnancy/Child Endangerment

Several states -- including Arkansas, Louisiana, Maryland, Minnesota, Montana, New Mexico, and Wyoming -- considered measures protecting unborn children from their mothers’ substance use/abuse.

 

Arkansas allocated $5 million over two years to expand substance abuse treatment services for pregnant women and women with children.

 

Louisiana expanded the definition of "prenatal neglect" to include (1) "exposure to chronic or severe use of alcohol"; (2) the use of any controlled dangerous substance "in a manner not lawfully prescribed" that results in symptoms of withdrawal to the newborn; (3) the presence of a controlled substance or related metabolite in the newborn; or (4) observable and harmful effects in the newborn's appearance or functioning. The measure also requires physicians to issue reports to the local child protection agencies if there are symptoms of withdrawal in a newborn child or other observable effects that the physician believes are due to chronic or severe alcohol use during pregnancy or if a toxicology test on the newborn child returns positive.

 

Maryland enacted a measure amending current policy to provide that a child is "not receiving proper care" if he or she is born exposed to methamphetamine or if the mother tests positive for methamphetamine upon admission to the hospital for delivery of that infant.

 

Minnesota enacted a measure allowing a court to order a pregnant woman into an early intervention treatment program for substance abuse. The bill also requires professionals, such as healthcare providers and law enforcement officers, to report suspected abuse of a controlled substance by a pregnant woman. However, Minnesota’s governor vetoed a measure that sought to establish an intervention and advocacy program to provide a range of services for women who give birth to children affected by alcohol or drugs.

 

Montana enacted a measure requiring specific professionals to report any infant affected by drug exposure to the health department.

 

Endnotes

1. The noted increase in abortion-related legislation compares 2007 activity to 2006 levels. Notably, 2007 levels approached those seen in 2004 and 2005.