The bottom line: The foes of reproductive freedom never rest. Supporters can't afford to either.
The abortion restrictions fell into six categories: bans, waiting periods, ultrasound requirements, insurance coverage, new clinic regulations specifically designed to close down abortion providers, and limiting medication abortions.
In addition, states restricted funding for family planning, especially Planned Parenthood, a specific target of anti-choice activists. This included cutting funding even for clinics that do not provide abortions. There was at least some good news on this score: Only half the 18 states with a line item in their state budgets for family planning wound up making cuts despite both economic and unprecedented political pressure to do so.
After years of moving toward more comprehensive sex education, the only legislation enacted in this arena in 2011 enhanced abstinence-only education. Mississippi added provisions to its already-mandated abstinence education that restrict school districts from expanding their curricula to include other material, such as contraception. Getting permission to do so will now require a district to get specific permission from the state department of education.
Despite the new restrictions, there were some victories. These 135 provisions were only a fraction of more than 1,100 introduced. A few of the important setbacks for the anti-choice forces were several relating to "personhood":
• Mississippians rejected a constitutional amendment that might have curtailed women's access to birth control and abortion services by defining a legal person as a “human being from the moment of fertilization.”
• In Montana, the House passed, but the Senate defeated, legislation putting an initiative on the ballot that would amend the state constitution to define a “person” to include “all members of the species Homo sapiens at any stage of development, including the stage of fertilization or conception.”
• In North Dakota, the House passed but the Senate defeated a bill to ban abortion by defining a human being as an “an individual member of the species Homo sapiens at every stage of development.”
• In Oklahoma, the House approved legisation to ban abortion by defining a “person” as i “a human being at all stages of human development of life, including the state of fertilization or conception.” But the Senate did not take action before the legislature adjourned.
• In South Dakota, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit blocked some provisions in a 2005 abortion counseling law and upheld one. The court struck down a provision requiring that a woman seeking an abortion be informed in counseling that the procedure increases the risk of suicide and thoughts of suicide because the claim is not supported by scientific evidence and means a provider must participate in “untruthful and misleading speech.” The requirement that the woman be told that the fetus is a “whole, separate, unique, living human being” was upheld and was not considered a violation of free speech protections because the provider is not required to repeat the exact words in the law.
Among major restrictions added by various states this year:
• Five states (Kansas, Indiana, North Dakota, South Dakota and Texas) mandated pre-abortion counseling and waiting periods. South Dakota's law, pending a legal challenge, requires a 72-hour waiting period during which the woman must visit one of those anti-abortion "crisis pregnancy centers" that provide inaccurate and ideologically tainted "information." She must also obtain counseling in person from the physician who will perform the procedure. Those are major obstacles in South Dakota, which has a single abortion clinic in Sioux Falls that is staffed once a week by physicians who fly in from Minnesota. That means an out-of-town woman would have to hang around for more than a week to obtain a procedure guaranteed to her by the U.S. Supreme Court.
• Alaska, Iowa and Maryland enacted laws restricting Medicaid abortions for low-income women to cases of life endangerment, rape or incest, and, in Maryland, for fetal impairment.
• Alabama, Indiana, Kansas, Oklahoma and Idaho enacted laws prohibiting abortion after 20 weeks of gestation based on the claim of "fetal pain." Nebraska adopted a similar law in 2010. Pro-choice advocates argue that these laws violate the Supreme Court's rulings that forbid states from placing undue burdens on women seeking abortions.
• Florida, Idaho, Indiana, Kansas, Nebraska, Ohio, Oklahoma, Utah and Virginia enacted laws restricting abortion coverage under all private health insurance plans, including those that will be part of health exchanges. Twelve states now restrict private insurance coverage of abortion, and nine others restrict only coverage through health exchanges.
• Mandatory "counseling" of women seeking abortions was enacted or expanded in Indiana, Iowa, Kansas, Louisiana and North Dakota. In Indiana, the counseling must include the statement that “human physical life begins when a human ovum is fertilized by a human sperm." In Kansas, the counseling must include a written statement that an abortion “will terminate the life of a whole, separate, unique, living human being.”
• Kansas, Arizona, North Dakota, Nebraska and Tennessee banned telemedicine for the provision of medication abortion. This procedure allows women to go to an abortion provider and receive counseling via videoconference from a physician in another location who then authorizes on-site staff to dispense the medication. Given the dwindling number of abortion providers nationwide, and particularly in underserved rural areas and small towns, telemedicine can bring medical services to people for whom they would otherwise be inaccessible.