2020 Legislative Wrap-up State Policy Report: An overview of the state landscape Current Context In the past 12 months, political forces have strengthened and shifted in the United States’ political arena, continuing to reshape the legal and legislative landscape of reproductive rights in the country and its territories. In the first half of 2020, the country faced a global coronavirus pandemic, massive job loss, and a nationwide racial reckoning spurred by police brutality against and the racist murder of Black Americans, including George Floyd, Breonna Taylor, Ahmaud Arbery, and Rayshard Brooks. As state legislatures attempted to mitigate the economic impact of the pandemic and address racial disparities, reproductive health and rights were not on the forefront of legislative agendas as they had been in previous years. While fewer reproductive rights measures were introduced in 2020 than in 2019, several states did pass both expansive and restrictive measures. Like in previous years, restrictive bills outnumbered legislation to increase access to abortion in 2020. This year has also been critical for reproductive rights in the courts. In June, the Supreme Court ruled in the Center’s case, June Medical Services v. Russo, striking down a Louisiana abortion restriction virtually identical to a Texas law the Court had deemed unconstitutional in 2016. The second half of 2020 brought the loss of Justice Ruth Bader Ginsberg, a firm champion of reproductive rights on the Court. The country subsequently witnessed the rushed confirmation of Justice Amy Coney Barrett. The straight party line vote of her confirmation emphasized the politicization of the judicial appointment process and the entrenched partisan divide in our government, as the Senate moved to firmly shift the political balance of our highest court. With Justice Barrett’s confirmation, the specter of a potential overturn of Roe v. Wade grows ever clearer although Roe need not fall in order to be effectively gutted, and anti-abortion state legislatures have continued to attack abortion access. All data within this report is valid as of December 10, 2020. 1 2020 Legislative Wrap Up The election of Joseph Biden and Kamala Harris will bring a new administration that recognizes reproductive rights and health and should start to undo some of the damage done by the Trump-Pence administration’s anti- reproductive rights policies. Additionally, elections brought some new state leadership, as voters elected increased numbers of women, people of color, and LGBTQ people to represent them. Some of these new representatives espouse platforms that celebrate reproductive health, rights, and justice. Control of the U.S. Senate will be determined by Georgia’s runoff election in January. In the House of Representatives, Democrats and supporters of reproductive rights and health will continue to hold a majority. As the year draws to a close, both supporters and opponents of reproductive rights are girding themselves for the uncertainty of 2021, when legislative sessions will continue to be marked by responses to the pandemic, the economic recession, and the struggle for racial justice. While federal legislative threats against the legal right to abortion may decrease, hostile state legislatures will continue their unceasing attacks on access to reproductive health services, underscoring the importance of safeguarding access to care at the state and local levels. This report provides an overview of the most recent state legislative and policy efforts restricting access to abortion, the proactive approaches state policymakers are employing to strengthen access to reproductive health care, the impact of COVID-19 on access to abortion, and developments the Supreme Court of the United States. 2 2020 Legislative Wrap Up Legislative Sessions By mid-November, seven states (MA, MI, NJ, NY, OH, PA, and RI) and the District of Columbia were actively in session this year. Thirty-nine legislatures (AK, AL, AR, AZ, CA, CO, CT, DE, FL, GA, HI, IA, ID, IL, IN, KS, KY, LA, MD, ME, MN, MO, MS, NC, NE, NH, NM, OK, OR, SC, SD, TN, UT, VA, VT, WA, WI, WV, and WY) had adjourned their regular sessions. Four state legislatures (MT, NV, ND, and TX) did not meet in 2020. Supporters at the rally for protecting abortion on March 4, 2020. The rally took place outside the U.S. Supreme Court during oral arguments in June Medical Services v. Russo. In June, the Court issued its ruling declaring a Louisiana abortion restriction unconstitutional. 3 2020 Legislative Wrap Up Restrictive Bills Enacted These measures aim to impede access to abortion care. Some directly challenge Roe v. Wade, primarily to set the stage for a case to make its way to the Supreme Court to challenge existing precedent on abortion rights. TRIGGER BANS These legislative bans on abortion are not active while Roe v. Wade is in place, but are meant to be “triggered” and make abortion illegal if the decision is overturned. However, these laws have never been tested. These laws stigmatize abortion, contributing to a climate of confusion, fear, and shame around access to care. In March, Idaho’s Governor Brad Little signed a trigger ban that would make performing or participating in an abortion a felony if Roe v. Wade were overturned. SB 1385 makes exceptions only in cases of life endangerment. In the same month, Utah’s Governor Gary Herbert signed SB 174, which would prohibit abortion if Roe v. Wade were overturned, except in cases of rape or incest, when a pregnant person’s life or physical health is severely threatened, or when the fetus has a lethal fetal anomaly. REASON BANS Reason bans prohibit abortion if sought for a particular reason, for example on account of the race, sex, or disability of the fetus. Reason bans inflict harm by promoting stigma around abortions and stereotypes of Black and brown communities, Asian Americans, and people with disabilities. They harm patient access to quality care by infringing on the doctor-patient relationship and entering a family’s private decision-making, while also failing to support the populations such bans purport to protect. 4 2020 Legislative Wrap Up In July, Mississippi’s Governor Tate Reeves signed HB 1295, which prohibits abortion on the basis of the fetus’s race, sex, or diagnosis (or potential diagnosis) of a fetal disability. The law includes exceptions only for the life or physical health of the pregnant person. It also requires providers to report whether the fetus’s race or sex had been detected or a disability diagnosed before the abortion, and that the patient confirmed they were not having an abortion for the prohibited reasons. The measure took immediate effect. METHOD BANS When states ban a method of abortion care that is preferred by the medical community, pregnant people are forced to undergo additional, invasive, and unnecessary procedures to obtain abortion care. These measures harm patients and prevent doctors from exercising their best medical judgment. In August, Nebraska’s Governor Pete Rickets signed LB 814, which bans the use of dilation and evacuation (D&E), except in cases in which the pregnant person’s life is endangered or the person is at risk of serious physical impairment. D&E procedures are the most common standard of care for abortion past fourteen weeks. The law took effect in November. FETAL TISSUE INTERMENT OR CREMATION MANDATES Regulations that require interment or cremation of fetal tissue further stigmatize abortion and pregnancy loss and may contradict the wishes of pregnant people. These requirements make it harder and more expensive for abortion providers, who already comply with standard protocols for handling and disposing of tissue, to provide care to their patients. After the U.S. Supreme Court upheld Indiana’s law relating to the disposal of fetal remains in 2019, Indiana’s legislature used this session to make that law even more burdensome. In March, Indiana’s Governor Eric Holcomb signed SB 299, which amends the requirements for disposing of fetal tissue, 5 2020 Legislative Wrap Up adding a biased counseling requirement that forces health care providers to inform patients that tissue can be disposed of by the patient or the clinic. It also imposes other administrative requirements, including requiring that a contract between the facility and the funeral home be made available during state inspections. The law took effect in July. In the same month, Utah’s Governor Gary Herbert signed SB 67, requiring the interment or cremation of tissue from an abortion or miscarriage. The law requires providers to inform the patient that tissue can be disposed of by the patient or the clinic, and took effect in May. SO-CALLED “BORN ALIVE” AND PERSONHOOD “Born alive” measures are fetal rights laws that extend criminal laws to cover “unlawful death” or other harm done to a fetus in the uterus or to an infant that exists outside of the pregnant person. Laws that mandate care of a fetus “born alive” in the process of an abortion procedure are unnecessary, as doctors already have an obligation to provide appropriate medical care. They are designed to confuse and scare the public, and are part of anti-abortion politicians’ strategy to ban all abortions. In March, West Virginia’s Governor Jim Justice signed HB 4007, requiring physicians to preserve the “life” of a fetus “delivered alive” after an abortion. The law took effect in May. Personhood measures extend the legal definition of a human being to include a fetus. In June, Puerto Rico’s Governor Wanda Vázquez signed a new civil code into law, recognizing a fetus’s “condition as a person,” and that it is “considered born for all the effects that are favorable to him or her.” While the code also states “the rights recognized to the nasciturus [unborn child] are subject to it being born alive and in no way undermine the constitutional rights of the pregnant woman to make decisions about her pregnancy,” the code could be interpreted to restrict abortion access.