NIRH publishes the Gaining Ground reports twice each year to analyze the proactive reproductive health, rights, and justice laws moved by state legislatures at midyear and at the year’s end.
The first six months of 2022 culminated in a devastating setback for reproductive freedom as the U.S. Supreme Court issued its shameful decision in Dobbs v. Jackson Women’s Health Organization, and demolished the Constitutional right to abortion in place for nearly half a century.
While Roe v. Wade had already been chipped away at by a deluge of state-level abortion restrictions over the past several decades, this decision further decimates access to abortion in many states, with more conservative state officials moving swiftly to implement both pre-Roe and post-Roe bans, with more expected as special legislative sessions already called in Florida, Indiana, South Carolina, South Dakota, and West Virginia.
Despite this grim landscape, the fight for abortion access is far from over.
This report shows how the Supreme Court decision spurred many state and local leaders to action, as advocates and policymakers alike prepared to meet this moment. It documents bills through June 30, 2022.
Provider Protection Bills
More than a half dozen states banned abortion in the first few days following the Supreme Court’s decision to overturn Roe. These laws typically criminalize reproductive healthcare by targeting those who provide abortions, who often face criminal penalties (including imprisonment) and significant fines. Some states are also considering how to impose other civil penalties, including –creating a right of civil action, and the revocation of medical licenses for abortion providers who provide services to anyone from states that have outlawed or severely restricted abortion access.
Both the expected fall of Roe and its core holdings and the passage of Texas Senate Bill 8 in 2021 prompted a number of state legislators to work with reproductive health, rights, and justice advocates to pass proactive bills that would protect abortion providers and ensure access for anyone seeking an abortion in a state where abortion remains legal, regardless of their state of residence. As a result, in 2022, several states passed legislation in an attempt to specifically shield abortion providers from retribution from restrictive laws in other states for providing this care.
California (AB 1666), Connecticut (HB 5414), Delaware (HB 455) New Jersey (AB 3974, AB 3975), and New York (S 9077, S 9079, S 9080) all passed some form of this type of legislation. These provider protection bills encompass some form of the following:
- Prevents extradition of abortion providers (NJ AB 3974, NY S 9077)
- Prohibits disciplinary action against health care providers for providing reproductive health care services that are within their scope of practice for a patient who resides in a state where such services are illegal (NY S 9079)
- Precludes medical malpractice insurers from taking any adverse action against an abortion provider for performing legal abortions (DE HB 455, NY S 9080)
- Bars state or local law enforcement agencies from cooperating with or disclosing information to any individual or out-of-state agency (NY 9077)
- Prohibits state courts from processing subpoenas or summonses for violations of other states’ abortion laws (NY 9077)
- Exempts a provider from a monetary judgment arising from an action in another state for knowingly engaging in conduct that aids or abets the performance or inducement of an abortion (CA A 1666, DE HB 455)
- Nondisclosure of certain patient information relating to reproductive healthcare service (CT HB 5414, NJ AB 3975)
Broadening the Scope of Who Can Perform Abortion Care
The Dobbs decision has already created a chilling effect on abortion access and reproductive healthcare. Clinics across the country have been forced to shutter their doors, leaving residents with no abortion services in their state. In response, states where abortion is expected to remain legal and protected have been passing legislation to prepare for an influx of patients from neighboring states. To accommodate the increased need for abortion care and services, some states have expanded the category of clinicians that are qualified to provide abortion care.
Connecticut enacted House Bill 5414, which removed medically unnecessary restrictions and expanded eligibility to include advanced nurse practitioners, nurse midwives, and physician assistants to perform first-trimester aspiration and medication abortions.
Maryland passed House Bill 937 to remove the requirement that only licensed physicians may provide abortions and expanded the definition of “qualified provider” to include nurse practitioners, nurse midwives, licensed certified midwives, and physician assistants. HB 936 also established the abortion care clinical training program in the Maryland Department of Health to increase the number of health professionals trained to provide abortion care.
Delaware House Bill 320 codified the right of physician assistants and advanced practice registered nurses to prescribe medication to terminate a pregnancy. Similarly, Washington House Bill 1851 broadened the definition of eligible providers to include physician assistants, advanced registered nurse practitioners, and other health care providers to perform abortions, as long as they are acting within the provider’s scope of practice.
In 2021, Hawaii House Bill 576 authorized advanced practice registered nurses to provide medication or aspiration abortions. This year, Hawaii built on those efforts by passing HI HR 139 in an effort to combat the shortage of physicians in the state. This resolution asked the Department of Commerce and Consumer Affairs to analyze the scope of practice for advanced practice nurses and physician assistants, focusing on whether those practitioners should be allowed to provide abortion care, among other expanded roles.
Codification of Fundamental Rights
Many states prepared for the fall of Roe by enshrining the fundamental right to reproductive decision making, including the right to access abortion and contraception, in state law to safeguard abortion rights for as many people as possible in a post-Dobbs world.
- Colorado’s Reproductive Health Equity Act (HB 1279) codified the right for Coloradoans to make decisions about their reproductive health care and affirmatively stated that people have a right to have an abortion or continue a pregnancy. HB 1279 also stated that every individual has the fundamental right to use or refuse contraceptive care. Additionally, HB 1279 denied independent or derivative rights to fetuses, fertilized eggs, and embryos. Lastly, the bill prohibited public entities from denying, restricting, interfering with, or discriminating against someone’s reproductive rights.
- Illinois also took steps to encourage the legislature to protect reproductive health care. IL HR 789 passed by the House, declared a commitment to ensuring access for women1 in Illinois to quality reproductive health care and urged the Illinois Congressional Delegation to support federal legislation and other efforts to ensure women’s health and reproductive rights continue to be protected. The resolution voiced opposition to any effort to punish those who seek a constitutionally protected abortion and condemns the efforts of those in Illinois and in other states, including Florida, Missouri, and Texas, to undermine women and their reproductive health. Illinois also adopted IL HR 790, a resolution that states the right to abortion and the ability to access birth control are fundamental rights and that the Illinois House believes that Roe v. Wade and Griswold v. Connecticut were both decided correctly and expresses opposition to overturning or weakening them.
- New Jersey enacted legislation to protect the right to abortion and expand access to reproductive health care and contraception. The Freedom of Reproductive Choice Act (S49/A6260) codified the right to freedom of reproductive choice, including the right to choose or refuse contraception or sterilization, to choose whether to carry a pregnancy to term, and to choose whether to give birth or to terminate a pregnancy. S49 guaranteed that New Jerseyans will continue to have the right to make their own personal decisions about their reproductive care. Additionally, this bill directed the Department of Banking and Insurance to conduct a study to determine whether health benefit plans should provide insurance coverage for abortions.
- In Vermont Proposal 5 is a proposed amendment to the state’s constitution that was adopted by the legislature and will appear on the ballot in November of this year. Vermonters will vote on whether to add language to the state’s constitution codifying an individual’s right to personal and reproductive freedom and autonomy. If Proposal 5 is approved, Vermont will be the first state to explicitly protect reproductive liberty in its constitution.2
Funding for Abortion Care
One of the greatest barriers to accessing abortion is the inability to afford these services, especially in light of many state laws withholding coverage for those who qualify for Medicaid or banning coverage in private insurance plans. Historically, those who already experience barriers to care, including people of color, Black, Indigenous, Latinx, and other people of color; LGBTQIA+ people; young people; immigrants; and others already marginalized by society are disparately impacted by and bear the brunt of the harmful effects caused by abortion bans and restrictions. Studies show that a woman who wants an abortion but is unable to access it is four times more likely to live in poverty, more likely to not be able to cover her basic living needs, and more likely to experience intimate partner violence. 3 In 2022, states and localities dedicated funding to provide practical and meaningful support to individuals seeking abortion care who could not afford the cost of the care and logistical expenses involved in accessing abortion, and to expand provider capacity. This funding will help ensure that people who need abortions are able to make decisions about their health and future with dignity and economic security.
- California’s 2022-23 budget includes more than $200 million in funding for reproductive health care. This funding will expand the state’s capacity to meet the abortion and contraceptive care needs of people across California and to serve the expected influx of people forced to travel to the state to access abortion care. It provides funding for abortion care, logistical and practical support, and for abortion clinic infrastructure and provider training.
- Illinois received a $5.4 grant in funding from the U.S. Department of Health and Human Services (HHS) that will support and expand access to equitable and affordable family planning services for low-income populations. This grant will support access to Title X services under the Illinois Family Planning Program. Additionally, $5.8 million in state general revenue funds will allow the Illinois Family Planning Program to provide approximately $11.2 million in funding to 29 delegate agencies that operate 98 family planning clinics throughout the state.
- In Massachusetts, pending Senate Bill 2915, if enacted, would allocate $2 million for grants to abortion funds to support improvements in reproductive health access, infrastructure, and security.
- New Jersey introduced legislation that would appropriate $20 million to strengthen access to reproductive health care with the passage of A4350/S2918 This includes an increased grant of approximately $10.5 million to help the Department of Health provide increased access to birth control, well-person visits, STI testing and treatment, and routine cancer screenings. This legislation would also allot $10 million as a grant to health facilities to assist providers in updating, opening, or expanding their sites to meet the increased needs of patients who travel to NJ health centers for reproductive health care, including abortion. Five million dollars would be used to assist providers in updating and protecting facilities from security risks given the heightened risk environment and an additional $5 million would be allocated to the OB/GYN Clinical Training Program as a grant to allow providers to be trained abortion care.
- New York Governor Hochul designated $35 million in state funding to expand provider capacity and improve security at reproductive health care facilities. The New York City Council announced a legislative package to support access to reproductive health care. Resolution 195 calls on the New York State Legislature to pass the Reproductive Freedom and Equity Program (S 9078/A.10148A) which would establish a grant program to fund abortion providers and non-profits that work to expand access. The City Council also renewed funding for the New York Abortion Access Fund for the fourth year.
- Oregon (H 5202) allocated $15 million to the Reproductive Health Equity Fund, which provides grants to community-based organizations in Oregon that work to advance reproductive health equity and access. These funds will be used to address immediate and urgent patient needs — including payment for abortion services, travel, lodging, and childcare — and to expand provider network capacity.
- In San Francisco, the City and County Commission on the Status of Women approved a resolution granting $250,000 to ACCESS Reproductive Justice to address barriers to abortion faced by women, trans people, and non-binary individuals in San Francisco and beyond. The San Francisco Board of Supervisors also reached a tentative budget agreement to invest an additional $400,000 in abortion access.
Expansion of Post-Partum Medicaid Coverage
The United States is the only developed nation with rising maternal mortality rates,4 and racial disparities in maternal health outcomes are stark. Black women face greater maternal morbidity and are three times more likely to die from a pregnancy-related cause than white women.5 The COVID-19 pandemic exacerbated disparities in maternal health outcomes during the past few years, with the highest increase seen in Black and Hispanic women.6 Lack of access to comprehensive postpartum care is cited as a contributing factor in the rise of maternal deaths, with more than half of all maternal deaths occurring postpartum.7 Medicaid, which offers expanded eligibility for pregnant people, pays for more than 40 percent of all births in the United States. However, the coverage available under expanded eligibility typically ends 60 days after the end of pregnancy.8 Expanding and enhancing postpartum Medicaid coverage to 12 months postpartum under the American Rescue Plan Act is emerging as a key strategy to address the racial and ethnic disparities of the maternal health crisis. Five states— Georgia (S 338), Kentucky (S 178), Maine (S 617), New York (S 8006), and Rhode Island (H 7123) enacted laws to extend Medicaid postpartum to 12 months. Legislation extending postpartum coverage in Delaware (H 234) is awaiting the governor’s signature.
- In portions of this document, we use the terms “woman” and “women,” especially when referring to research, studies, or legislation that employ a gendered analysis and legislation that uses gendered terminology. We recognize that other people, such as transgender men, gender non-conforming people, and gender non-binary people, can become pregnant and need reproductive health care. We intend for them to be included in our analysis as well.
- While other states’ constitutions do protect reproductive liberty, the protections are not as explicit as those provided by Proposal 5.
- Roosa Tikkanen et al., The Commonwealth Fund, Maternal Mortality and Maternity Care in the United States Compared to 10 Other Developed Countries (2020), www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries.
- Working Together to Reduce Black Maternal Mortality, Ctr. For Disease Control, https://www.cdc.gov/healthequity/features/maternal-mortality/index.html (April 6, 2022).
- Marie E. Thoma & Eugene R. Declercq, All-Cause Maternal Mortality in the U.S. Before vs. During the COVID-19 Pandemic, 5 JAMA 6 (2022) https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2793640.
- Roosa Tikkanen et al., The Commonwealth Fund, Maternal Mortality and Maternity Care in the United States Compared to 10 Other Developed Countries (2020), https://www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries
- Medicaid’s Role in Financing Maternity Care, MACPAC, https://www.macpac.gov/wp-content/uploads/2020/01/Medicaid%E2%80%99s-Role-in-Financing-Maternity-Care.pdf, (January 2020)