State Actions to Protect and Expand Access to Abortion Services

Across the nation, states are preparing for the impending Supreme Court ruling on the case challenging the state of Mississippi ban on abortions past 15 weeks, Dobbs v. Jackson Women’s Health. The plaintiffs in the case have asked the Court to overturn Roe v. Wade and Planned Parenthood v. Casey, cases which have set the federal standard for the types of laws that states may implement to regulate abortion access. On May 2, 2022, Politico published a leaked draft of the Supreme Court’s decision in Dobbs v, Jackson Women’s Health that would overturn Roe v. Wade and Planned Parenthood v. Casey and eliminate the federal standard regarding abortion access. The Supreme Court acknowledged the authenticity of the draft but stated, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”

While it is estimated that roughly half of the states across the U.S. will move to either outright ban or greatly restrict abortion access, there is growing momentum in a handful of states to not only protect abortion access for their state residents, but also to expand access to people who live in states that ban or restrict abortion. The types of legislative actions vary considerably. Some states are focusing on clarifying and strengthening long-standing protections for abortion rights, while others seek to assure affordable access to abortion services for their residents and to protect clinicians who provide abortion services in their states.

This brief reviews the status of state actions to strengthen and guarantee abortion access to their residents, as well as to prepare for the likely increase in demand for abortion services in those states should the high court overturn the constitutional right to abortion established by Roe v. Wade.

Protect the Right to Abortion

Should the Supreme Court overturn or weaken the Roe decision in its ruling on the Dobbs case, it will again be up to each state to establish laws protecting or restricting abortion in the absence of a federal standard. While much has been noted about the states that will likely ban or greatly restrict abortion access, some states are moving to enact laws that are protective of abortion rights for their residents. Some State Supreme Court decisions have established that the right to an abortion is included in the right to privacy or other provisions of the state constitution. However, just as the United States Supreme Court could overrule Roe, State Supreme Courts could also overrule these prior decisions regarding the right to an abortion in the state constitution.

In the face of a possible loss of the federal standard granted by Roe, policymakers in some states have recently added explicit language to state laws or the state constitution to protect the right to abortion care. For example, the New Jersey Supreme Court in 1982 recognized that the right to privacy protected under the state constitution is more expansive than the federal Constitution and encompasses a “fundamental right of a woman to control her body and destiny.” In January 2022, the New Jersey legislature enacted and the governor signed a statutory protection for abortion. Similarly, in April 2022, Colorado also added statutory protections for reproductive health care that includes abortion care. In March 2022, Washington state enacted legislation that expands abortion protections to people of all genders and prohibits any penalties for people assisting pregnant individuals seeking an abortion or criminalizing any pregnancy outcomes. In May 2022, Connecticut passed a bill that builds upon their previous law protecting the right to abortion. This new bill protects not only abortion services, but also addresses the services related to pregnancy or contraception

In February 2022, the Vermont legislature passed a proposed amendment to the state constitution to “ensure that every Vermonter is afforded personal reproductive liberty.” The amendment will become part of the constitution if the voters approve it in the November 2022 election. The California Governor and the leadership of the legislature are also proposing a state constitutional amendment, which if passed by at least a two-thirds vote in the Senate and Assembly, will be placed on the November 2022 ballot.

If the Court rules to overturn Roe in the Dobbs ruling, it is anticipated that new legal challenges to abortion bans will be filed in and decided by state courts. For example, Michigan enacted an abortion ban in 1931, decades before the Supreme Court issued its decision in Roe v. Wade. In anticipation of the Dobbs ruling, Governor Whitmer (D) has filed a lawsuit to ask the Michigan Supreme Court to resolve whether Michigan’s Constitution protects the right to abortion. The Governor’s position is that there is a state constitutional right to an abortion under the due process clause and equal protection clause of the Michigan Constitution.

Insurance Coverage and Clinic Support

Recent research finds that the median costs of a first trimester abortion is around $600, not including costs that could be incurred to travel out of state or take time off from work. This amount of money is unaffordable to many people, particularly those that are low-income. The Federal Reserve Board found over 35% of U.S. adults do not have enough in savings or cash equivalent to pay for a $400 emergency expense, meaning many individuals may need to delay having an abortion until they can raise the necessary funds or use credit card debt or a loan from friends or family. Recognizing the importance of affordability, some states are seeking to protect abortion access by taking measures to make sure it is affordable to insured patients at a minimum.

California, which already requires health plans regulated by the state to include abortion coverage if they cover pregnancy related care, passed a new law this year that prohibits health insurance plans from imposing any cost-sharing for abortion services. In addition, California uses state revenues to pay for the full costs of abortion services for its Medicaid enrollees who seek abortion. Similarly, Maryland passed a new law requiring most insurance providers to cover the cost of an abortion with no cost-sharing and created a pilot program designed to cover the nominal premium cost associated with abortion coverage for young adults enrolled in ACA Marketplace plans who have a $0 expected contribution after premium subsidies (other than the small additional charge related to abortion coverage). Three other states — Illinois, New York, and Oregon — passed laws before 2022 requiring health plans regulated by the state to include abortion coverage without cost-sharing.

Outside of insurance coverage, the Oregon legislature passed the Reproductive Health Equity Fund that allocates $15 million to Seeding Justice, a nonprofit  grassroots funding organization that will distribute the funds to help individuals who need abortion care and organizations that provide abortion care.

With the backing of the New York Attorney General, legislative leaders have introduced legislation to establish a state program that would provide financial resources to clinicians who provide abortion care, nonprofit organizations helping to increase access to care, and individuals seeking abortion care. California is considering a package of bills related to abortion access including one bill focused on providing funding to people from out- of- state seeking abortion services in California. (See Box 1)

Expanding the Pool of Clinicians Offering Abortion Services

Some states seeking to protect abortion rights are also preparing to accommodate increased demand for abortion care from people coming from out-of-state. One approach states have used to address this is to expand the pool of clinicians qualified to provide abortion care. In 2013, California passed a law allowing trained advance practice clinicians, such as nurse practitioners and physician assistants, to provide abortion care with physician supervision, after it was demonstrated that these clinicians provided care that was on a par with care offered by physicians. This legislative session, California is currently considering bills that would authorize nurse practitioners with specified training and education requirements to provide abortion care independent of physician supervision, under specified conditions.

Maryland recently passed legislation permitting nurse practitioners, nurse midwives, licensed certified midwives, and physician assistants to perform abortions starting July 1, 2022. This law also creates an abortion care clinical training program with $3.5 million annual allocation to fund abortion care training and two community-based provider sites with the goal of expanding the number of health care professionals with abortion care training and increasing the racial and ethnic diversity among health care professional with training. This bill was initially vetoed by the Republican Governor but was subsequently overridden by the legislature. However, because Maryland’s Governor then blocked the funding for this bill the start of the training program will be delayed until July 2023. The legislature does not have the authority to mandate spending in the upcoming fiscal year but may disburse funds in future years if the governor blocks an appropriation.  Washington State and Delaware also codified the right of physician assistants, and advanced registered nurse practitioners and other health care providers to perform abortions, acting within the provider’s scope of practice. Similarly, Connecticut has enacted a law allowing advance practiced registered nurses, nurse-midwives, and physician assistants to perform aspiration procedures.  In addition, the same law codifies a 2001 attorney general decision allowing advanced practice registered nurses, nurse-midwives and physician assistants to prescribe and dispense medication abortion pills.

Legal Protections for Clinicians, People Seeking Abortions, and Pregnant People

The Supreme Court’s imminent ruling on Dobbs v. Jackson Women’s Health Organization has also brought new attention to medication abortion pills. In recent years, a growing body of research has evaluated the safety of providing mifepristone to people seeking abortion when supervised through clinicians using telehealth.

The COVID-19 pandemic made this option more salient, considering the need to limit in-person contact. In December 2021, the FDA lifted a long-standing requirement for clinicians to dispense the drug directly to the patient, by modifying the prior Risk Evaluation Mitigation System (REMS) requirement and opened the door to expanded use of mifepristone via telehealth. Telehealth abortion not only has the potential to expand access to people living in communities with few clinicians who provide abortions, but also could make abortion available to people living in states that will restrict or ban abortion should Roe be overturned.

Twenty-three states and the District of Columbia do not have restrictions that would limit the ability of medication abortion to be provided via telehealth. In these states, eligible people can have the medication mailed directly to them after a telehealth visit with a clinician and do not need an in-person visit. It is not clear, however, if these clinicians would be subject to criminal or civil liability in the states that ban abortion or telehealth abortion should they dispense medication abortion pills to people living in states that either ban telehealth for medication abortion or ban all abortions. Consequently, states seeking to protect abortion access are looking for ways to protect clinicians residing in their state from other states’ legal liability.

Connecticut has enacted a law to protect people in the state, including out of state visitors who come for an abortion, from legal actions from other states. The Connecticut law blocks state agencies from assisting in interstate investigations or prosecutions that would hold someone civilly or criminally liable for providing, seeking or receiving reproductive health services, including abortion care. Health plans and providers cannot disclose any communication regarding reproductive health services without written consent by the patient. The Connecticut law also limits the Governor’s discretionary authority to extradite individuals accused of crimes in another state for actions that are that are legal in Connecticut. In other words, a clinician that lives in Connecticut who provides abortion services for patients from or in a state that bans abortion cannot be extradited from Connecticut upon request of the other state, unless the act committed is also punishable under Connecticut’s laws. The law also allows someone who is sued for civil liabilities in another state for the provision or assistance in receipt of provision of abortions services to seek restitution attorney fees and costs through Connecticut courts. This provision is targeted at protecting residents from potential liability from people who live in states that have enacted laws like the Texas SB8 law which allows individuals to sue anyone who aids or abets individuals who get an abortion outside of the state’s requirements.

As part of its recently passed legislation, Washington State prohibits the state from imposing any penalties against people assisting pregnant individuals seeking an abortion or criminalizing any pregnancy outcomes. In a similar vein, California lawmakers are considering a bill that would prohibit the state from compelling a person to provide information about an individual who has sought an abortion, if the information is being requested based on another state’s laws that bans abortions and imposed civil or criminal penalties. New Jersey is also considering a bill to block the enforcement of other state laws banning abortion against New Jersey residents.

Many Will Still Lack Access to Abortion Services

While policymaker efforts in states that support abortion access would expand availability to both residents and nonresidents alike, not all people who live in states that ban abortions will be able to get to neighboring states to obtain an abortion. Some will not have enough money to travel, or pay for childcare, and many do not have the flexibility to take time off from work. For these people, the abortion bans in their states will mean they have no way to access abortion services and be faced with the difficult options of seeking abortion services outside of recognized clinical care or being forced to carry their pregnancy to term.