2020 Roundup: Reproductive Freedoms Are Under Threat
Amid the chaos and confusion of the Covid-19 pandemic, reproductive freedoms faced both progress and setbacks across the country in 2020. And some states used the guise of the pandemic to put into place restrictive laws that are harmful to women’s health.
That’s according to an annual report from NARAL’s Pro-Choice America (NARAL) that outlined the status quo of abortion rights and reproductive freedoms in the U.S. The report is an important bellwether in the direction of women’s healthcare rights, particularly as the Supreme Court has decided to take up a case that threatens to overturn abortion rights.
In 2020, more states actually expanded women’s health rights than restricted them, but 14 states still passed 18 measures that are harmful to reproductive rights in the U.S. By comparison, 23 states and the District of Columbia passed 63 measures expanding reproductive freedoms for abortion, contraception coverage and pregnancy/postpartum care.
“While some states exploited the pandemic to restrict access to time-sensitive and needed abortion care during already difficult times, reproductive freedom champions in other states moved proactively to protect access to abortion,” Ilyse G. Hogue, president of NARAL, said in the report. “In 2020, overall, less anti-choice legislation was enacted because of legislative closures in response to the pandemic.”
Another significant setback to the women’s health movement was the death of Supreme Court Justice Ruth Bader Ginsburg, who was a champion for reproductive health and rights. The nomination and subsequent confirmation of Justice Amy Coney Barrett, who holds hard-right conservative and anti-choice beliefs, is a threat to reproductive freedom.
Our reporting below takes stock of the most recent laws passed expanding and restricting women’s health rights, using NARAL’s annual report as a guide. At the time of publication, NARAL rated the state of reproductive freedom in the U.S. as “alarming,” and the nation is split on how much access is available depending on the state.
Several states took aim at abortion access during 2020, expanding rights and restricting access through elections and state legislatures. Here are some of the biggest changes that took place last year:
Virginia passed 11 measures supporting reproductive freedom. The state passed the Reproductive Health Protection Act that rolled back many state-wide abortion restrictions, including mandated patient counseling and ultrasounds and a 24-hour wait period before receiving an abortion, among other things.
Voters in Colorado voted against a proposed ban on abortion later in pregnancy that would force a woman to carry, making no exceptions for the health of the woman, a deadly fetal diagnosis or even rape cases.
In a key win for pro-choice advocates, the Supreme Court struck down a Louisiana state statute required physicians who provide abortion services to have admitting privileges at nearby hospitals. Analysts noted that if the Supreme Court upheld the law, only one abortion provider would remain in the entire state.
Iowa passed legislation making it harder for women to receive an abortion by mandatiing a 24-hour waiting period after giving written consent for care, with exceptions for life threatening emergencies.
“We have seen states that have tried to pass these increasingly restrictive laws that they know are unconstitutional just to get a case before a court, which they think is going to be friendly to them,” Jamille Fields Allsbrook, JD, MPH, director of women’s health at the Center for American Progress, told The Whipp.
Allsbrook, who was not involved in the development of the NARAL report, also added that if anti-abortion laws succeed in one state other states tend to push the envelope to try and pass even more restrictive laws to encroach upon Roe v. Wade.
Several trigger laws, or anti-choice legislation that automatically goes into effect if the Supreme Court overturned Roe v. Wade, were passed in various states.
Louisiana revised its state constitution with Amendment I, which establishes no right to abortion or the funding of abortion in the state, thereby making abortion illegal in the state.
Idaho and Utah passed trigger laws that criminalize abortion.
Tennessee, which passed the most reproductive restrictions in 2020, also passed a trigger law that would ban first and second trimester abortions. Additionally, the state passed a heartbeat bill banning abortions at the first sign of a fetal heartbeat. Pregnant women in the state who seek an abortion must receive an ultrasound, and providers are required to counsel pregnant patients on medication abortion.
The pandemic also offered opportunities for both restrictions and healthcare rights expansions. With doctor’s offices closed, the Trump administration loosened some restrictions related to medication abortion and telehealth. However, a handful of states, including Texas, Arkansas, Kentucky, Louisiana and Mississippi, attempted to use the pandemic to restrict abortion access through executive orders by claiming abortion care wasn’t necessary health care. In the case of Texas, the executive order didn’t make it far and was struck down.
“We saw 11 states attempt to use the guise of the Covid-19 pandemic to restrict abortion access, declaring it a ‘non-essential service,’” Allsbrook told The Whipp. “That’s an ongoing trend that we have seen over many decades to try to undermine abortion, but Covid-19 is the new hook.”
Contraception Access by the Numbers
2020 was also a mixed bag for contraception access, after the Supreme Court, in a 7-2 vote, upheld two Trump administration rules that allow employers with moral or religious objections to deny employees access to contraceptive coverage. This ruling was significant as it was the first contraception access case to be heard by Trump appointees Neil Gorsuch and Brett Kavanaugh.
“We hold that the Trump administration had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections,” Justice Clarence Thomas wrote in his opinion.
Vermont, Minnesota, Virginia and West Virginia passed legislation allowing pharmacists to prescribe and/or dispense contraception, making “the pill” more widely available to women.
Illinois expanded access to emergency contraception.
26 states ensured requirements that health insurance companies cover prescription contraception to the same extent as any other medication.
20 states required health insurance companies to cover multiple months of contraception dispensed at once, and 17 of those states required coverage of 12 months of contraception.
26 states provided more access to Medicaid coverage for family planning services either through a waiver from the federal government or a State Plan Amendment, which outlines the scope of the state’s Medicaid program.
And 15 states provided Medicaid coverage of 12 months of contraception dispensed at one time.
Pregnancy/Postpartum Care Access
There was a lot of good news when it came to pregnancy and postpartum care access, after 19 states and Washington, D.C. passed 42 measures that promote healthy pregnancies. Of note, these bills accounted for the largest fraction of measures expanding reproductive freedom, according to NARAL. There were even strides made in states that are hostile to reproductive freedoms.
Eight states and Washington, D.C. passed legislation that broadens the scope of and funding for maternal mortality review committees.
“A big issue is our ongoing maternal health crisis,” Allbrook said. “This crisis has existed for six decades. Black and Indigineous women are three times more likely to die from pregnancy-related complications. The Biden administration has promised that addressing the crisis will be a priority, which has been made worse by Covid.”
A renewed focus on the maternal health crisis has also gained some momentum in Congress, with the Black Maternal Health Caucus presenting a Momnibus package of bills aimed at improving maternal health.
Here are some of the top changes in 2020:
Georgia passed a bill that expanded Medicaid coverage for lactation services and overall postpartum care.
Four states passed legislation requiring employers to allow for “reasonable accommodations” to employed pregnant women.
And seven states now mandate protections for incarcerated pregnant women.
Four states—California, Colorado, Utah and Washington state—expanded paid family leave.
Federal employees were granted 12 weeks of paid parental leave under the Federal Employee Paid Leave Act, which went into effect in October 2020.
However, not all laws last year were beneficial to pregnant and postpartum women. Colorado expanded health benefit plans to cover infertility diagnosis, infertility treatment and fertility preservation services, but also allowed religious employers to refuse coverage should it conflict with the company’s religious beliefs and practices.
The Future of Reproductive Freedoms
Allsbrook said she hopes the Biden administration will roll back Trump-era rules restricting reproductive freedoms and go beyond “undoing the damage done” by improving and expanding abortion care, contraception coverage and maternal health.
“As much harm as the Trump administration has done to Medicaid, Title X, birth control access, private insurance coverage of abortion, his administration did not create all of the barriers to reproductive health,” Allsbrook told The Whipp. “Many of these barriers existed for decades and for some groups more than others like Blacks, LGBTQ individuals and those of low income.”
Pro-choice advocates are also looking to the Biden administration to create a new pathway to for family planing providers to once again receive federal funds for providing healthcare services around the country, Allsbrook added.
With a 6-3 conservative majority on the Supreme Court, more work is needed to ensure women’s reproductive rights are protected. The Supreme Court’s decision to review a Mississippi abortion law that could jeopardize abortion access and even overturn Roe v. Wade has pro-choice advocates watching closely. The case is set to appear before the Court later in 2021, and the judgment will likely be passed in 2022.
“I think what we will continue to see happen is the erosion of abortion access – a mandatory 24-hour waiting period, mandatory ultrasounds, gestational bans that restrict abortions after a specified number of weeks,” Allsbrook told The Whipp. “I think we will continue to see states pass these sorts of laws and even attempt to pass blatantly unconstitutional laws. I don’t think it’ll happen right away, but I do think it is a very real threat the way the Court remains, and we all need to watch it as these threats will continue to impact a larger group of people.”