Terry Sollom & Patricia Donovan. Family Planning Perspectives. Volume 17, Number 6. Guttmacher Institute, Nov-Dec 1985.
Sixty-five laws related to fertility were enacted by the 49 state legislatures that held sessions in 1985. This was the largest number enacted since 1973, and the second largest total since The Alan Guttmacher Institute began tracking state legislation in 1972. This article summarizes the new provisions that deal with family planning services (including sterilization), abortion and minors’ access to contraceptive and abortion services.
Abortion-Related Laws
Between 1973, when the U.S. Supreme Court recognized a woman’s constitutional right to abortion, and 1983, fertility-related legislation was dominated by the abortion issue. This balance has changed in recent years, however, in part because the courts have struck down numerous state acts that were designed to circumvent the 1973 decision, and in part because other fertility-related topics, particularly maternal and infant health, have become more salient.
The 1985 abortion-related laws are as remarkable for what they do not do as for what they deal with. No waiting periods, no new, burdensome informed-consent provisions and no hospitalization requirements for second-trimester abortions were enacted, probably because the Supreme Court held in 1983 that these kinds of restrictions are unconstitutional.
Public awareness of the “war” being waged against abortion providers heightened in 1984, as a result of the fact that 24 clinics were bombed or set afire, and hundreds of others were targets of bomb threats, vandalism, invasions and harassment. Thus, in 1985, several state legislatures enacted laws imposing stiff penalties on the perpetrators of illegal activities against abortion providers. In addition, several nonbinding resolutions condemned the violent acts and urged the investigation of such incidents and the prosecution of the people involved.
The most important action was taken by Washington State, where the legislature enacted the Anti-Harassment Act of 1985. Although the law never mentions abortion specifically, it clearly is intended to put an end to the death threats, intimidation, blockades of entrances, and pushing and shoving that have become common tactics of antiabortion demonstrators at clinics around the country. Declaring that “the prevention of serious, personal harassment is an important government objective,” the statute makes unlawful “the repeated invasions of a person’s privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate or humiliate the victim,” The law defines harassment to include threats of bodily injury or property damage, subjection of a person to physical confinement or restraint, and acting maliciously in a way that either is intended to harm someone or “by words or conduct places the person threatened in a reasonable fear that the threat will be carried out.” These offenses are misdemeanors, unless the perpetrator has been convicted of an earlier incident of harassment of the same victim or his or her family, even in another state, in which case the offense will be considered a felony. The law recognizes the “likelihood of repeated harassment directed at those who have been victims of harassment in the past,” and gives a court the authority to order a defendant who is free pending trial to “refrain from contacting, intimidating, threatening or otherwise interfering with the victim” or his or her family, and to stay away from the victim’s home, school, business or place of employment.
The Massachusetts legislature raised the maximum sentence for those convicted of the illegal use of a bomb from five years to 25 years. A new clinic violence law enacted in California specifically classifies as a felony the act of exploding, igniting or attempting to explode any device, or of committing arson, near health facilities or places where organizations counsel for or against abortion. A Wisconsin omnibus “pregnancy options” law, aimed primarily at preventing teenage pregnancy, makes trespassing an abortion facility a misdemeanor punishable by a $1,000 fine.
Connecticut, Virginia and Washington passed resolutions that condemn violence against abortion facilities and urge law enforcement officials to take vigorous action to capture and convict the perpetrators of illegal activities. Although the resolutions do not have the force of law, they are an important reflection of public opinion. The outcry over the violence, and the arrest and conviction of individuals responsible for 13 of the bombings and fires that occurred in 1984, may have caused the sharp drop in the number of bombing and arson incidents in 1985. Nevertheless, the National Abortion Federation reports that there were 176 incidents of death threats, invasions, vandalism and other violence against clinics by November 1985, compared with 161 such acts in 1984.
Public funding for abortions continued to receive the attention of state legislators in 1985. As it has in every year since 1978, the Michigan legislature voted in 1985 to prohibit the use of state funds to pay for indigent women’s abortions, except in cases of life endangerment. And, as in the past years, the governor vetoed that restriction.
The California legislature voted in 1985 to limit funding to cases of life endangerment, rape, incest and fetal abnormality. In every year since 1981, the legislature has tried to limit abortion funding, but the state courts have ruled that if California pays the expenses of childbirth for indigent women, the equal protection clause of the state constitution requires that it also pay for abortions needed by indigent women. Frustrated by their inability to restrict Medicaid funding through legislation, antiabortion activists in California now are collecting signatures to place two proposed amendments to the state constitution on the ballot in 1986; the amendments would eliminate virtually all abortion funding in that state. (California accounts for nearly half of all publicly funded abortions provided in the United States.) Antifunding initiatives also are likely to be on the ballot in Arkansas, Massachusetts, Oregon and Washington, where one was defeated in 1984.
An effort to amend the Colorado constitution by referendum to eliminate state abortion funding succeeded in November 1984, and in May 1985, the legislature exercised its authority under the amendment to appropriate funds to pay for abortions only when the woman’s life is endangered. The new law defines life endangerment as a physical or psychiatric condition that represents a “serious and substantial threat” to the woman’s life or a medical condition in the fetus that would cause its death during gestation or birth.(6) The law states that unless the woman has been receiving prolonged psychiatric care, the abortion provider must consult with a licensed psychiatrist to confirm the psychiatric condition. Colorado, which in 1967 became the first state in the country to liberalize its abortion law, had paid for abortions for indigent women since 1969.
Wyoming slightly relaxed its restrictions on abortion funding to permit coverage in cases of rape or incest, as well as when the woman’s life is threatened. However, North Carolina’s appropriation to its abortion fund was cut substantially, a move that reflects the leadership of the new, antiabortion governor, James Martin. Funding for fiscal 1986 is set at $924,000; an additional $450,000 that had been in the fund now is earmarked for unspecified “perinatal” services. Moreover, new limits restrict the use of money from the fund to North Carolina residents who receive either Aid for Families with Dependent Children payments or state health-support services, or whose annual incomes fall below a certain fixed amount. In addition, recipients must document that they either were the victims of rape or incest, are mentally retarded, are under age 18, have evidence that the fetus is deformed or have a physician’s statement that the pregnancy would impair their health.
Currently, 30 states limit abortion funding to cases where the woman’s life is threatened; most do so through administrative policy rather than by legislation. Fourteen states+ and the District of Columbia pay for all abortions, but five of these-California, Connecticut, Massachusetts, New Jersey and Vermont-do so only because of a court order. The remaining six states-Arizona, Iowa, Minnesota, Virginia, Wisconsin and Wyoming-will pay for an abortion if the woman is the victim of rape or incest, if her life is endangered by the pregnancy and, in a few cases, if the fetus is abnormal.
Other Abortion Restrictions
In 1985, Utah amended its 1982 informed consent law requiring abortion facilities to give patients, on request, state-prepared materials on abortion, including descriptions and photographs of fetal development at two week intervals, and to tell all patients of the availability of these materials, unless the physician certifies that they could cause “severe detriment” to the woman’s health. The old law mandates that patients be given these materials, and also imposed a 24-hour waiting period between the first visit and the abortion procedure, but the latter requirement was dropped in 1985. The new statute also requires abortion facilities to report on the number of materials distributed, the number of women who obtained abortions without receiving the materials and the number of statements from physicians certifying the conditions under which notice of the materials’ availability was withheld.
A comprehensive Nevada statute passed in 1985 provides that “an individual meeting health department qualifications, as well as the attending physician,” is qualified to counsel women considering abortion about the risks and benefits of the procedure, possible alternatives, likely physical and emotional consequences and the method to be used. In past years, some states have tried to restrict the availability of abortions by requiring physicians to personally provide this counseling. Such requirements would have increased the cost of an abortion and, given the usual pressures on a physician’s time, probably would have resulted in less individualized counseling. In 1983, however, the Supreme Court ruled that a state may not require the doctor to provide the information, but must allow trained counselors to do so as well.
The Illinois legislature overrode Governor James Thompson’s veto of a spousal consent law that provides injunctive relief for a husband who opposes his wife’s decision to have an abortion. The law affects only pregnancies that have proceeded past viability. (An exception can be made if a court determines that the pregnant woman’s life or health is endangered-the only cases in which post-viability abortions can be performed in Illinois.) The U.S. Supreme Court ruled in 1976 that states could not impose a blanket spousal consent requirement for all abortions; it has never specifically addressed the issue of spousal consent for abortions after viability, however.
To discourage abortion clinics from opening by making them too expensive to operate, some state legislatures, and particularly local governments, have imposed extremely stringent licensing standards. This tactic was addressed in a 1985 Texas law, which directs the state board of health to adopt rules for licensing abortion clinics and for setting minimum standards for their operation, but also specifies that those standards may be no more stringent than Medicare certification standards.
Wisconsin’s omnibus pregnancy options law has several abortion-related components. It requires that prior to obtaining an abortion, a pregnant woman be given information about her medical condition relative to her pregnancy and about prenatal care, adoption, family planning and abortion services that are available. The woman must also sign a form saying that she was given this information. On request, the clinic or physician is required to provide a woman with information on the probable physical characteristics of the fetus at that point in gestation. Finally, the law defines viability as the likelihood of sustained fetal survival outside of the womb and imposes penalties on doctors who perform abortions after that period, unless the procedure is needed to save the woman’s life.
Arkansas established conditions under which abortions may be performed after viability: Such abortions are limited to those that are necessary to preserve a woman’s life or health; a minor also may obtain a late abortion if her pregnancy is the result of rape or incest. The law requires a physician to use that method of abortion that is most likely to preserve the fetus’s life and health, unless that method is associated with greater risks to the woman than are other abortion methods. A second physician is required to be present at late abortions, in order to provide care to any fetus born alive.
The standard of care during an abortion in which a viable fetus may result and the requirement that a second physician be present are two issues currently before the Supreme Court in cases from Illinois and Pennsylvania. These cases raise other issues as well: The Pennsylvania law imposes slightly less burdensome informed consent requirements than those that were struck down by the Court in its 1983 Akron decision. Additionally, the Illinois law defines an abortifacient as “any instrument, medicine or drug … known to cause fetal death” and requires that physicians prescribing or administering abortifacients inform their patients that they are doing so. The cases were argued in November, and a decision is expected by the summer of 1986.
Family Planning Services
Legislation dealing with the delivery of family planning services was subjected to public funding restrictions in 1985 because of controversy involving those providers that offer abortion-related services. A small cadre of antiabortion legislators continued to pursue tactics designed to impede women’s access to abortion by denying them basic information about abortion through family planning programs. For example, California appropriated almost $40 million for family planning services in fiscal 1986, a 17 percent increase over fiscal 1985. During legislative consideration of the budget, however, language was added that would have prohibited the distribution of state family planning funds to providers that “perform, promote or advertise for abortion, or receive any direct or indirect compensation, advantage, benefit or gain from abortion referrals.”
The restriction was removed by an assembly-senate conference committee, but a legislative staff member forgot to edit out the restriction before sending the budget bill to Governor George Deukmejian. The governor, who says that he opposes state funding for abortions but supports family planning, did not veto the restriction, even though he knew that the conference committee had not intended it to be in the final version of the bill. Deukmejian later commented that had the clerical error not happened, he had been prepared to cut the family planning appropriation in half and hold the rest of the funds “hostage” until the legislators voted to include the restrictions.
Planned Parenthood Affiliates of California (PPAC) filed a lawsuit in July charging that the law violated the intent of the legislature, was an unconstitutional infringement on a woman’s right to make her own informed decision on whether to terminate a pregnancy and limited the free speech rights of family planning providers by withholding state funds from organizations that use private funds to provide access to abortion. The state court of appeals issued a preliminary injunction against enforcement of the restriction, so family planning providers continued to give patients, on their request, information about all options for dealing with an unplanned pregnancy, including abortion. In November 1985, the court permanently and unanimously struck down the prohibition, stating that it violated the “single-subject rule” of the state constitution, in that the prohibition would have amended the state family planning law in an unrelated piece of legislation. The court did not address the constitutional issues raise d in the PPAC lawsuit.
The Montana legislature mandated in 1985 that all federal family planning funds for fiscal 1986 that are distributed in the state be awarded “contingent upon the recipient providing such services in a physical plant that does not contain an abortion clinic or facility that performs abortions.” Montana distributes a total of $1.5 million per year in federal family planning funds (under Title X of the Public Health Service Act) to 15 grantees. However, only Planned Parenthood of Billings would have been affected by the law, because that agency, which does not perform abortions itself, rents space to an unaffiliated clinic that does so.
Before the Montana law was signed, the state’s legislative council informed the governor that the co-location language was inconsistent with federal law” and might violate the equal protection provision of the U.S. Constitution. The council warned that because of the legislature’s action, the DHHS could withhold Title X funds from the state. In spite of the warning, Governor Ted Schwinden decided not to veto the restriction, claiming that his authority to veto a single item of instructional language in a budget bill was questionable. He also maintained that a veto might jeopardize the entire family planning appropriation. If those affected by the law feel that the legislature acted improperly, Schwinden said, they “have ready access to the courts.” Planned Parenthood of Billings filed a lawsuit in federal court asking that the law be declared unconstitutional on the basis of the protected right of freedom of association. The court temporarily enjoined enforcement of the restriction in June, and a fin al ruling is expected early in 1986.
The Wisconsin legislature passed an appropriations bill for fiscal 1986 that allocated $1.2 million for family planning services, an increase of $200,000. A separate appropriation was made for pregnancy counseling programs, and included a requirement that grants be awarded to organizations that would encourage women with problem pregnancies to carry them to term. The language specified that money would be awarded to organizations that normally do not receive family planning funding, and that such funds could not be used to advertise, assist, encourage or coordinate abortions, or to provide abortion referrals. Governor Anthony S. Earl vetoed these restrictions, but allowed the bill to become law with a provision that applicants for pregnancy counseling funds demonstrate that none of the money will be used to perform abortions. Wisconsin also passed a law repealing restrictions on the advertising and sale of nonprescription contraceptives, except for the sale of condoms in vending machines.
Recently, attempts have been made at the federal level to prevent Title X recipients from providing information on abortion in their pregnancy counseling sessions; these actions are similar to some of the state laws attempting to reach the same end. Harry 5. Jonas, president-elect of the American College of Obstetricians and Gynecologists, noted in regard to these efforts that “this is a society in which every patient has a right to expect that the information she gets from her health professional is based on the best medical knowledge available, and not restricted by a government gag that makes it impossible for the doctor or nurse to give information freely and promptly … Proponents claim that these provisions are just there to establish a wall between the family planning programs and abortion. That is nonsense.”
Many states included funds for family planning in general appropriations bills; at least four besides California and Wisconsin allocated sizable increases for family planning services. Michigan appropriated about $1.5 million, an increase of $1.1 million over the previous year. The New York legislature boosted its appropriation by $1.0 million over the fiscal 1985 level of $4.2 million. New Jersey’s family planning appropriation was increased by more than 50 percent, from $300,000 to $575,000; in addition, in Washington State, the appropriation was raised by six percent, to $5.5 million.
Minors
Differences among legislators regarding the right of minors to consent to reproductive health care (whether for contraception or abortion) have led to two patterns of response. Twenty-nine states and the District of Columbia have affirmed the right of minors to receive family planning services on their own consent, and no state bars minors by statute from consenting to these services. However, since 1974, 23 laws mandating parental involvement in a minor’s abortion decision have been enacted. Twelve are in effect; 11 have been struck down or have had their enforcement enjoined by the courts. Interestingly, few have been enacted in the past three years; most of those currently in effect were passed before 1983.
In 1985, no state enacted a parental consent requirement for minors seeking an abortion; one such bill, in Arizona, was vetoed by Governor Bruce Babbitt. Nevada passed a parental notification provision as part of a comprehensive abortion statute, but enforcement of the provision has been enjoined since July 1985.
Enforcement of the Illinois Parental Notice of Abortion Act has been enjoined since 1984 because of concerns about minors’ ability under the law to obtain approval for an abortion from a court if they choose not to have their parents notified. Early in 1986, the state supreme court is expected to issue rules designed to assure confidential and expeditious hearings for minors seeking abortions. In the meantime, despite the injunction, the Illinois legislature passed an amendment to the act requiring that a public defender be appointed to represent a minor before the court. In addition, the Indiana legislature corrected a printing error in its 1984 parental consent law, so that minors may petition juvenile or county courts outside their own county for judicial waiver of the parental consent requirement.
A legal struggle continued in 1985 over a four-year-old Utah law that required unmarried minors to obtain parental consent before getting contraceptive care from federally funded family planning providers. The 1981 law was challenged by the Planned Parenthood Association of Utah (PPAU) in 1982 on the ground that the state health department, Utah’s sole recipient of federal family planning funds through Title X, was denying minors access to confidential contraceptive services in defiance of the provisions of Title X. The federal district court issued a temporary restraining order against enforcement of the law in 1983.
Faced with the threat of losing the Title X grant, Utah officials devised a system under which the state would refer minors who were unable to get parental consent to private agencies. PPAU again filed a legal challenge to the policy, and the court handed down an ultimatum to the state: Either relinquish Title X funds or begin serving minors confidentially. Utah chose to forfeit the money, which was then awarded to private family planning providers, principally to PPAU. Utah appealed a permanent injunction in 1984, but the U.S. Court of Appeals for the 10th Circuit affirmed it in October 1985 and barred the state from receiving Title X funds so long as it enforced the 1981 law requiring parental consent.
Before the court of appeals issued its decision, the Utah legislature rushed a bill through in the closing hours of its session to mandate that minors obtain parental consent before receiving nonemergency medical treatment from “health care providers”-a broad range of medical practitioners that includes not only physicians and nurses, but also laboratory technicians, social workers, dentists, pharmacists and counselors. The bill clearly was intended to accomplish two aims. One was to reinstate Utah’s 1983 law requiring notification of both parents if an unmarried minor seeks contraceptive services. (This law had been struck down on constitutional grounds.) At the same time, the bill apparently was aimed at bolstering the state’s chances of winning its appeal on the 1981 law, by establishing a general law of medical consent for minors. Governor Norman Bangerter, who supported the bill as well as the concept of parental consent for contraceptive services, reluctantly vetoed it because of the reservations of the medical community and the state department of health services, especially concerning the confidentiality and availability of pregnancy testing and of treatment for venereal diseases, rape and sexual abuse.
Sterilization
In recent years, there has been increased awareness of the potential for abuse when an individual who is unable to give informed consent is sterilized. The feeling has grown that sterilization should be considered for the mentally impaired only when the use of less permanent methods of birth control is not feasible. Parents often seek to have an impaired child sterilized to avoid these risks; however, despite parental requests, physicians usually are reluctant to sterilize someone who cannot give legally binding consent. Moreover, in states with no laws allowing the sterilization of the mentally impaired generally, the courts have ruled that they lack the power to authorize a sterilization.
Two states enacted laws in 1985 that address this difficult issue. Delaware prohibits the sterilization of mentally impaired individuals who are institutionalized or of persons confined to correctional facilities, without a court determination either that they are capable of giving informed consent and have done so or, if they are unable to consent, that the sterilization is in their best interests. Before sterilization of someone who is unable to give consent is authorized, a court hearing must be held, at which it must be shown that the person is permanently incapable of giving informed consent, that the use of other contraceptives is not feasible, that (in the case of a woman) a pregnancy would endanger her life, that the person is not able to care for a child and that the individual’s family or guardian does not object to the procedure.
Judicial involvement also is mandated in a new Georgia statute governing the sterilization of individuals who are irreversibly mentally incompetent to the degree that they could not care for and support a child. The statute requires that a court-appointed medical team evaluate whether the person’s condition is permanent and whether less permanent methods of contraception could be used. It further mandates a court hearing and approval of the sterilization by a medical committee at the facility where the procedure will be performed. These laws both guarantee the incompetent individual’s right to counsel throughout the judicial process and his or her right to appeal.
In 1985, the California supreme court struck down the state’s law prohibiting all nontherapeutic sterilizations of incompetent developmentally disabled persons, on the ground that the law unconstitutionally infringed on the right of the mentally impaired to procreative choice. The court ruled that the mentally impaired, through their conservators, can consent for sterilization, just as they can for abortion and for other types of contraception.
Other Issues
In recent years, legislatures have been confronted with medical and legal developments that have resulted in new ethical concerns about fetuses and severely handicapped infants. In 1985, state laws were enacted to regulate the disposal of fetal remains, to prohibit the use of fetal remains for commercial purposes and to impose criminal sanctions for causing the miscarriage of a fetus during a felony.
In 1985, nine states passed virtually identical natural-death acts, all of which recognize the legality of living wills written by competent adults who want life-sustaining procedures withdrawn if they suffer from a terminal condition. However, five of these state laws declare that a living will is unenforceable if a woman is pregnant; the others nullify the will if the woman’s physician concludes that the fetus could develop to the point of birth with continued use of life-sustaining procedures. Although these laws are not necessarily antiabortion statutes, the pregnancy exemption clauses have been supported, and perhaps prompted, by the right-to-life movement, as are many of the wrongful-life, wrongful-birth and Baby Doe statutes enacted in the past few years. Laws enacted in 1985 in Idaho and North Dakota prohibit wrongful-life claims brought by handicapped children who contend that they would not have been conceived or would have been aborted if their parents had been counseled correctly about likely birth defects. In recent years, a few antiabortion activists have pressed for such laws because of their conviction that a physician should never be held liable for the birth of a child, however impaired. In fact, most states do not permit wrongful-life claims, on the ground that it is impossible to determine whether a life with defects is better than nonexistence. However, courts in California, New Jersey and Washington have held that a child can sue for wrongful life in order to collect damages for the extraordinary expenses that will be incurred during the child’s lifetime as a result of his or her disability. Most states recognize the right of parents to bring wrongful-birth claims against physicians who fail to give them sufficient information about possible risks to enable them to decide whether to conceive or to continue a pregnancy. Both the Idaho and the North Dakota legislatures have made it clear that wrongful birth claims are not precluded under their new statutes.
The medical treatment of newborn infants with life-threatening conditions has come under great scrutiny since the death of Baby Doe in 1982. The publicity and debate that surrounded the writing and final issuance of federal regulations concerning the care of handicapped newborns probably influenced the passage of state laws establishing standards of care. Baby Doe laws have received the backing of the right-to-life movement because they are designed to prevent termination of life support for severely handicapped newborns.
In 1985, the scope of Minnesota and Montana statutes protecting neglected children was extended to protect infants born with life-threatening conditions from having medical treatment withdrawn or withheld. However, neither law requires the provision of treatment, other than appropriate nutrition, hydration and medication, when the infant is irreversibly comatose, when the treatment would merely prolong the child’s death or when the treatment itself would be inhumane. The Minnesota statute permits local welfare agencies to investigate reports of alleged medical neglect, while the Montana law repeals a section of an earlier law mandating such investigations.
Conclusion
Only in 1973, the year the Supreme Court legalized abortion, did state legislatures enact a larger number of fertility-related laws than they did in 1985. Abortion continued to be a major focus of the new laws, but not the primary focus: More than a third of new legislation pertained to family planning and maternal and infant health issues.
Unlike those abortion laws passed in previous years that were often designed to circumvent the Supreme Court’s decisions or to impose barriers to abortion, some of the 1985 abortion laws are designed to protect abortion rights. Most noticeable was the action taken by several states to severely punish the perpetrators of violence against abortion clinics. The new abortion laws also were influenced by recent Supreme Court decisions that prevent states from impeding access to abortion services.
The most troubling aspect of the fertility-related legislation that was enacted in 1985 is the effort by a number of legislatures to attach restrictions on abortion counseling and referral to family planning appropriations bills. Similar attempts are under way in Congress, where legislators opposed to abortion and family planning, led by Rep. Jack F. Kemp (R.-N.Y.) and Sen. Orrin G. Hatch (R.-Utah), have sought to amend Title X to prohibit grantees from providing basic information about the availability of abortion to women faced with an unplanned pregnancy.