Overview of U.S. Pro-Life Bills and Provisions Advanced and Laws Enacted from January to May 2021: Pro-Life Banner Year as States Continue to Reject the Radical Abortion Agenda

by Arina O. Grossu, M.A., M.S.

 

This is Issue 59 in the On Point Series. 

 

INTRODUCTION

 

With the Biden administration reversing numerous life-affirming policies, it is clear there is an aggressive abortion agenda in Washington D.C. It is also clear the pro-abortion sentiment in the nation’s capital is not aligned with the views of Americans at the state level.  The Guttmacher Institute, in an April analysis, said that “2021 is on track to become the most devastating antiabortion state legislative session in decades.”^[1]  While the Guttmacher Institute sees pro-life bills and laws as “devastating,” the pro-life movement sees them as an incredibly positive sign that Americans are pro-life and ultimately want measures that protect and support women and their children.

 

As of May 31, 2021, in 48 U.S. state legislatures, a total of approximately 489 pro-life bills (or bills containing at least one pro-life provision) have been advanced from January to May 2021.^[2]  Many of these bills contain multiple pro-life provisions.  Other counts tally the number of provisions in each bill, instead of the total bill tallies.  These counts lead to counting some bills multiple times, but failing to capture other bills with important pro-life provisions.  For the purposes of this research, each bill with pro-life provisions is counted only once, even if it contains multiple pro-life provisions.

 

As of May 31, 2021, 89 new pro-life bills (or bills containing at least one pro-life provision) have been enacted into law since the beginning of 2021 across 26 states.  Notably, in the last two weeks of April, more pro-life bills or bills containing pro-life provisions were enacted as were from January to mid-April 2021.

 

The surge in new pro-life bills and laws shows how the American people, through a bipartisan set of state representatives, continue to reject the radical terms of Roe v. Wade and Planned Parenthood v. Casey.  States are taking concrete actions to protect life and provide more support for mothers at the state level with broad public support. At the level of government more directly responsive to the will of the people, it is clear where the American people stand on the issue of life.  Even at the most local level, since June 2019, there have been 29 cities that have declared themselves “Sanctuary Cities for the Unborn” outlawing abortion within their city limits by local ordinance.^[3]

 

A January 2020 Pew Research Center analysis indicates that new pro-life state laws correlate to a higher pro-life sentiment in those states.  The report surveyed seven states that enacted new pro-life laws in 2019 and found that the majorities of the adults in four of the seven states said that abortion should be illegal in all or most cases.  In the other three states, the pro-life sentiment was higher than the national average.^[4]

 

2021 PRO-LIFE BILLS ADVANCED (BY STATE)

 

As of May 31, 2021, a total of approximately 489 pro-life state bills or (or bills containing at least one pro-life provision) had been advanced in 2021 in 48 states, organized by state:

Most Common Pro-Life Bills and Provisions ADVANCED in 2021

As of May 31, 2021, the following are the most common pro-life bills advanced in state legislatures in 2021:

1. Bills banning all or most abortions
2. Bills requiring abortion reporting
3. Bills regulating abortion providers
4. Bills requiring care for infants born alive
5. Bills with counseling requirements
6. Bills prohibiting abortion coverage in Medicaid
7. Bills banning abortion due to a prenatal disability diagnosis or screening
8. Bills banning sex-selective abortion
9. Bills banning abortion after 12 weeks gestation
10. Bills with conscience protections for medical providers

 

Most Active states IN ADVANCING Pro-life Bills and Provisions in 2021

As of May 31, 2021, the following are the top states that have advanced the most pro-life bills (or bills containing at least one pro-life provision) in 2021 (in order of most to least):

1. Texas- 54
2. West Virginia- 27
3. Missouri- 23
4. Arkansas- 22
5. Illinois- 19
6. Minnesota- 18
7. Arizona- 18
8. South Carolina- 17
9. Kentucky- 16
10.  Oklahoma- 16

 

Additionally, dozens of state bills that are being amended on non-pro-life issues in 2021 contain pro-life language established in prior years that prohibits funding or referral for abortion.  There are also bills where family planning services do not include abortion, abortion referrals, or abortion counseling.

 

Most Active states IN ENacting Pro-life Laws and Provisions in 2021

 

As of May 31, 2021, the following are the top states that have enacted the most pro-life laws (or laws containing at least one pro-life provision) in 2021 (in order of most to least):

1. Arkansas- 19
2. South Dakota- 7
3. Montana- 7
4. Oklahoma- 6
5. Indiana- 6

 

Pro-Life Bills and Provisions Enacted in January to END OF May 2021

 

As of May 31, 2021, an impressive 89 new pro-life bills (or bills containing at least one pro-life provision) have been enacted into law since the beginning of 2021 across 26 states.  In the last two weeks of April alone, more pro-life bills or provisions were enacted as were from January to mid-April 2021.

 

Alabama (2):

 

On March 9, 2021, the Alabama state legislature passed House Joint Resolution 24 (HJR24), recognizing January 22, 2022 as the “Day of Tears” to commemorate the over 61 million unborn children who have died in the U.S. since Roe v. Wade. Citizens of Alabama are encouraged to lower their flags to half-staff to mourn the innocents who have lost their lives to abortion.  It is the first state to pass such a bill.

 

On May 27, 2021, Gov. Kay Ivey (R) signed into law H237 requiring a physician to exercise reasonable care to preserve the life of a child who is born alive after an abortion or attempted abortion in an abortion or reproductive health center, and to establish criminal penalties for violations by providers. The law states that a “child born alive after an abortion or attempted abortion in an abortion or reproductive health center shall be entitled to the same physician patient relationship that is currently available for any other individual in need of medical care at any location in this state.”  A physician who fails to preserve the life and health of the child in violation of this law will be guilty of a Class A felony.  This law is scheduled to take effect on August 1, 2021.

 

Alaska (1):

 

On May 1, 2021, Gov. Mike Dunleavy (R) signed into law H76, extending COVID-19 state benefits.  One provision is regarding abortion funding.  It states, “Money received under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Coronavirus Response and Relief Supplemental Appropriations Act (CRSSAA), or the American Rescue Plan Act may not be expended for an abortion,” except as provided by federal law. This law went into effect immediately.

 

Arizona (4):

 

On March 22, 2021, the Arizona legislature passed Senate Concurrent Resolution 1009 (SCR 1009) supporting the enactment of the Born-Alive Abortion Survivors Protection Act and the Ensuring Accurate and Complete Abortion Data Act of 2019.

 

On April 23, 2021, Gov. Doug Ducey (R) signed S1254 into law amending current statutes to require the inclusion on the state health department website on or before February 1, 2022, of a list of public and private agencies and services available to assist a woman through pregnancy, childbirth, and while her child is dependent.  Agencies that counsel, refer, perform, induce, prescribe, or provide for any means for abortion may not be included on this list.  Adoption agencies that are not affiliated with an abortion provider may be listed, as well as agencies that offer free obstetric ultrasounds and free adoption counseling.

 

On April 27, 2021, Gov. Doug Ducey signed S1457 into law amending its statutes on various abortion-related provisions.   It requires Arizona law to be interpreted, on behalf of an unborn child at every stage of development, as conferring “all rights and privileges available to other people, citizens and residents of Arizona, subject only to the U.S. Constitution and decisions of the U.S. Supreme Court.”  It prohibits sex-selective or race-selective abortions, or abortions because of a genetic abnormality, except in the case of a medical emergency.  Violation of this law is a felony for providers.  The woman on whom an abortion is performed based on race, sex, or genetic abnormality is not subject to criminal prosecution or civil liability.  It also prohibits a public educational institution from performing or providing an abortion, except to save the life of the mother.  It prohibits the use of public money on research that involves fetal remains from an abortion or from human somatic cell nuclear transfer.  It requires that the baby’s bodily remains from a surgical abortion be disposed of by cremation or interment and that the woman on whom the abortion is performed has the right to determine the method and location for the final disposition of the baby’s bodily remains.  It also requires that abortion-inducing drugs be provided by a qualified physician and that they may not be given via courier, delivery, or mail service.  Lastly, it requires abortion facilities to report whether a genetic abnormality of the unborn child was detected at or before the time of the abortion and the method of final disposition of the baby’s bodily remains from surgical abortions.  This law is scheduled to take effect in August 2021.

 

On May 5, 2021, Gov. Doug Ducey signed H2454 into law, a measure amending Arizona’s telehealth practices. One provision prohibits the use of telehealth to provide an abortion and enumerates the potential penalties for violations, including unprofessional conduct, and suspension or revocation of the license of the health care provider.

 

Arkansas (19):

 

Gov. Asa Hutchinson (R) signed H1195 (Act 90) to “Create the Every Mom Matters Act (EMMA); To Provide Healthcare Support to Pregnant Women in Arkansas; And to Stabilize Families and Reduce the Number of Abortions Performed in the State” and it became law on February 9, 2021.  EMMA is a state program that provides pregnancy support, social services case management, parenting resources, a care plan of resources, and referrals including to health care, pediatric, and post-partum care.  This state program prohibits referrals of the pregnant woman to an abortion provider, recommending or advising an abortion.  Agencies, subcontractors, or care agents affiliated with this program may not be abortion providers or have performed or been employed by an abortion provider in the last two years. This law also requires at least one random annual audit of abortion facilities and persons performing abortions to ensure compliance with a review of at least 10% of the medical records of women who obtained an abortion. This law is scheduled to take effect in January 2023.

 

Gov. Asa Hutchinson signed S6 (Act 308) to “Create the Arkansas Unborn Child Protection Act; To Abolish Abortion in Arkansas and Protect the Lives of Unborn Children; And to Protect All Human Life” and it became law on March 10, 2021.  This law prohibits abortion except to save the life of a pregnant woman in a medical emergency.  Under this law, performing or attempting to perform an abortion is an unclassified felony with a fine not to exceed $100,000 or imprisonment not to exceed 10 years.  This law does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.  This law is scheduled to take effect in June 2021.

 

On March 17, 2021, a Senate Resolution was adopted (SR7) regarding public school sex education programs.  It includes a provision that “every child deserves an education…as guided by his or her parents, including one free of graphic sexual curricula or content [and] the promotion of abortion…”  It states that all public-school sex education programs should be opt-in and voluntarily chosen by parents.

 

Gov. Asa Hutchinson signed H1544 (Act 392) to “Affirm the Right of a Municipality to Declare the Municipality a Pro-Life City” and it became law on March 17, 2021.

 

Gov. Asa Hutchinson signed H1069 (Act 408) to amend the provisions of the Arkansas Code concerning the practice of pharmacy and it became law on March 22, 2021.  While this law authorizes pharmacists to provide access to and administration of oral contraceptives, it also contains a new pro-life provision that “a pharmacist shall not provide the patient with a referral to a licensed abortion provider.”

 

Gov. Asa Hutchinson signed S289 (Act 462) creating the “Medical Ethics and Diversity Act” protecting the rights of conscience of medical practitioners, healthcare institutions, and healthcare payers and it became law on March 29, 2021.  The purpose of this act is to protect all medical practitioners, healthcare institutions, and healthcare payers from discrimination, punishment, or retaliation as a result of any instance of conscientious medical objection.  A civil action for damages or injunctive relief, or both, may be brought by a medical practitioner, healthcare institution, or healthcare payer for a violation of this act. This law is scheduled to take effect in June 2021.

 

Gov. Asa Hutchinson signed into law S85 (Act 498) to amend the right to view ultrasound images before an abortion and to create the “Right-To-Know-And-See Act” and it became law on March 30, 2021.  Under this law, a physician is required to perform an obstetric ultrasound, provide a simultaneous verbal explanation of the ultrasound, display the ultrasound images so that the pregnant woman may view them, and retain the ultrasound images in her medical records. It also requires the state health department to inspect the records quarterly to ensure physicians comply or face fines or a suspended license.  This law is scheduled to take effect in June 2021.

 

Gov. Asa Hutchinson signed H1572 (Act 560) to “Create the Informed Consent for Chemical Abortion Act” and it became law on April 5, 2021.  It requires that a chemical abortion shall not be performed or induced without the voluntary and informed consent of the pregnant woman, except in the case of a medical emergency.  The healthcare provider must provide information to the pregnant woman orally or in person, 72 hours before the abortion, such as including the probable gestational age of the unborn child, description of the abortion drug regimen, risks and complications, and abortion pill reversal information.  This law also requires that the abortion facility submit to the state health department quarterly reporting about the total number of chemical abortions performed.  It enumerates criminal and civil penalties as well as professional disciplinary action for providers who fail to comply. It does not create or recognize a right to abortion.  This law is scheduled to take effect in July 2021.

 

Gov. Asa Hutchinson signed H1589 (Act 561) and it became law on April 5, 2021.  It amends the Arkansas Code to prohibit taxpayer funding for abortions, stating that a “governmental entity may not enter into a taxpayer resource transaction with an abortion provider or an affiliate of an abortion provider.”  This law is scheduled to take effect in July 2021.

 

Gov. Asa Hutchinson also signed H1402 (Act 562) to amend the “Abortion-Inducing Drugs Safety Act” and it became law on April 5, 2021.  The amendment is meant to protect the health and welfare of every woman considering a drug-induced abortion and to ensure that a physician examines a woman in person before prescribing, administering, or dispensing an abortion-inducing drug.  It requires that a woman considering a drug-induced abortion receive comprehensive information on abortion-inducing drugs.  It also sets up requirements for the physician such as handling abortion complication management and scheduling a follow-up visit within 7 to 14 days after the administration of the abortion-inducing drug.  This law is scheduled to take effect in July 2021.

 

Gov. Asa Hutchinson signed H1215 (Act 607) to grant full practice authority to certified nurse midwives and it became law on April 7, 2021.  It contains a new pro-life provision that “does not authorize a certified nurse midwife to perform an abortion or provide abortion counseling or abortion referrals.”

 

On April 14, 2021, the Arkansas General Assembly passed House Concurrent Resolution 1007 (HCR1007) recognizing January 22 in perpetuity as the “Day of Tears” to commemorate the over 61 million unborn children who have died in the U.S. since Roe v. Wade and to encourage the citizens of Arkansas to lower their flags to half-staff to mourn the innocent unborn children who have lost their lives to abortion.  It was approved by the Gov. Asa Hutchinson on April 19, 2021.  Arkansas is the second state to enact a “Day of Tears,” following Alabama.

 

Gov. Asa Hutchinson signed S527 (Act 740) amending current laws concerning abortion facilities, requiring them to post information regarding human trafficking, amending the definition of abortion within the Cherish Act, and requiring a written agreement between an abortion facility and a hospital that is capable of treating patients with unforeseen complications related to procedures performed at the abortion facility, as well as requiring a written agreement with an ambulance service for the transport of any emergency patient.  It became law on April 20, 2021.  This law is scheduled to take effect in August 2021.

 

Gov. Asa Hutchinson signed H1592 (Act 820) creating the “Arkansas Student Protection Act” which prohibits a public school or open-enrollment public charter school from knowingly entering into any type of transaction with an individual or entity that performs, induces, or provides abortions.  It became law on April 21, 2021.

 

Gov. Asa Hutchinson also signed S463 (Act 787) amending abortion reporting requirements and inspections of abortion facilities and it became law on April 21, 2021.  It requires the state to send abortion data to the Centers for Disease Control and Prevention (CDC) and record and report to the CDC all instances of a suspension of a physician’s license related to abortions or abortion facilities.  The law lists criminal penalties for a person who notifies an abortion facility prior to an inspection revealing that the state may or will conduct an inspection or if a person knowingly conceals or removes information that is relevant to the inspection of an abortion facility.  Reporting requirements include reporting to the state health department the number of abortions performed to save the life of the mother and the number of abortions performed because of rape or incest.  In the case of rape and incest, it also requires the physician or abortion facility to file the documentation in the pregnant woman’s medical record that a crime has been reported to law enforcement.  This law is scheduled to take effect in August 2021.

 

Gov. Asa Hutchinson signed H1646 (Act 931) defining “person” in the state criminal code to include an unborn child in utero at any stage of development from conception until birth, with exceptions, and it became law on April 26, 2021.

 

Gov. Asa Hutchinson signed S388 (Act 949) and it became law on April 29, 2021.  It requires the licensing of abortion facilities and prohibiting hospitals from performing abortions except to save the life of the mother in an emergency.  This law is scheduled to take effect in August 2021.

Gov. Asa Hutchinson also signed the appropriations bills S111 (Act 842) and S158 (Act 1006) and they became law on April 26, 2021 and April 29, 2021 respectively.   Section 25 of S158 and Section 26 of S111 renew the prohibition on state funds being used for abortion referral in public schools or for abortion services.  These provisions will be in effect from July 1, 2021 through June 30, 2022.

 

Florida (1):

 

On May 24, 2021, H7061 became public law, a measure regarding taxation amendments.  One provision is the “Strong Families Tax Credits” with one of the requirements being that the state Department of Children and Families may not designate as an eligible charitable organization for tax credit purposes an organization that provides abortions or pays for or provides coverage for abortions. This law is scheduled to take effect on July 1, 2021.

 

Idaho (4):

 

On April 20, 2021, Gov. Brad Little (R) signed H302 amending existing law to provide that certain printed material be made available to help educate mothers about Down Syndrome and the resources available in the private and public sectors to assist parents of children with Down Syndrome.  It is to be made available in both English and Spanish to physicians, hospitals, or other facilities providing abortion and abortion-related services.  The amendment also strikes out of the Idaho code the permissibility of abortions when the “child would be born with some physical or mental defect.”  This law is scheduled to take effect in July 2021.

 

On April 23, 2021, Gov. Brad Little signed the measure H191 amending Idaho Code regarding temporary caregivers and temporary care assistance programs.  In a section about the delegation of parental powers, it prohibits temporary caregivers from consenting to an abortion or the inducement of an abortion to be performed on or for the child.

 

On April 27, 2021, Gov. Brad Little signed H366 into law amending existing law by prohibiting the performance of an abortion without first determining whether there is a detectable fetal heartbeat and prohibiting an abortion after a heartbeat is detected, except in the case of a medical emergency, rape, or incest.  A fetal heartbeat can be detected as early as six weeks of gestation.  It also enumerates penalties for licensed health care professionals including a felony and suspension of their professional license for those who violate it.

 

On May 10, 2021, Gov. Brad Little signed H220 into law, a measure called the “No Public Funds for Abortion Act.”  It prohibits health care facilities owned or operated by the state, a county, a city, a public health district, a public school district, or any political subdivision or agency from contracting with any health care provider or health care facility that provides, performs, or induces an abortion. It also prohibits the use of public funds, public facilities, and assets for abortion.  It has an exception for abortions performed to save the life of the mother.  Additionally, it prohibits abortion-related activities in school-based health clinics.  There is a penalty for a public officer or public employee for violations of this law.  This law went into effect immediately.

 

Indiana (6):

 

On April 19, 2021, Gov. Eric Holcomb (R) signed S10 into law regarding maternal mortality reporting.  It requires that a committee review all cases of maternal mortality involving the death of a woman occurring during pregnancy or through the first year after pregnancy.  It also requires a health care provider and a health care facility to report deaths during pregnancy through the first year after pregnancy.  It requires the committee to determine and provide the findings in an annual report about whether an abortion was performed on the individual and whether the abortion contributed to maternal mortality or whether a miscarriage occurred and whether the miscarriage contributed to maternal mortality.  It requires the maternal mortality review coordinator to establish a process to report mortality cases to the committee.  It extends the expiration date of the maternal mortality review committee to June 30, 2025.  This law is scheduled to take effect on July 1, 2021.

 

On April 20, 2021, Gov. Eric Holcomb signed telehealth bill S3 into law.  One of the provisions amends current state law and prohibits the use of telehealth to provide any abortion, including the writing or filling of a prescription for any purpose that is intended to result in an abortion.  This law took effect immediately.

 

On April 29, 2021, Gov. Eric Holcomb signed four measures.  The first measure, H1577, includes many amended pro-life provisions.  It adds mental health providers to the list of persons who may not be required to participate in abortions and abortion counseling.  It restricts chemical abortions to 8 weeks of gestation, dropping it from 9 weeks, and requires that a physician dispense the drug in person and that the pregnant woman consume it in the presence of the physician.  The physician is also required to provide information about the option of abortion pill reversal. It also requires that a pregnant woman be advised prior to fetal ultrasound imaging that an ultrasound image will be provided to her at no charge.  An ultrasound report must be included in the pregnant woman’s medical file. Abortion reporting requirements were also updated so that they include the facility name and city where a pregnant woman provided consent and received all required information.  Other amendments include abortion facility annual inspections with a random review of patient files.  If noncompliance is discovered, the state health department would be prohibited from renewing the license of the abortion facility until the noncompliance is remedied.  This law is scheduled to take effect on July 1, 2021.

 

The second measure he signed is H1032, an amendment to Indiana’s safe haven law with new details and requirements regarding newborn safety devices.  It provides for placement of a newborn safety device at any facility that is staffed by an emergency medical services provider on a 24-hour-per-day, seven-day-per- week basis.  It also provides for placement of a newborn safety device at any fire department, including a volunteer fire department.  This law took effect immediately.

 

The third measure he signed into law is H325 regarding born-alive requirements.  The law provides that if a woman who is in premature labor presents to a hospital, the hospital must inform the woman of the hospital’s capabilities of treating the born-alive infant and managing a high-risk pregnancy.  It requires the hospital to provide a medical screening examination and any needed stabilizing treatment to an infant who is born alive or a woman who is in premature labor.  A hospital that violates this provision is subject to penalties, and a health care provider who violates the standards of practice is subject to disciplinary sanctions.  This law is scheduled to take effect on July 1, 2021.

 

The fourth measure he signed is H1405 regarding school corporations and Medicaid reimbursements.  School corporations may apply for Medicaid reimbursement for medically necessary, school-based Medicaid-covered services that are provided under federal or state mandates.  However, services under this provision may not include an abortion, counseling for abortion procedures, referrals for abortion services, abortifacients, or contraceptives.  This measure applies after June 30, 2023.

 

Kentucky (3): 

 

On January 22, 2021, the Kentucky legislature overrode Gov. Andy Beshear’s (D) veto of a measure (S9) related to the protection of infants born-alive.  It specifies that a born-alive infant shall be treated as a legal person under the laws of the state.  It prohibits a person from denying or depriving a born-alive infant of nourishment with the intent to cause or allow the death of the infant, and it prohibits a person from denying or depriving a born-alive infant of medically appropriate and reasonable medical care.  It requires a physician performing an abortion to take all medically appropriate and reasonable steps to preserve the life and health of a born-alive infant and specifies that if the physician is unable to perform those duties, then an attending physician assistant, advanced practice registered nurse, nurse, or other healthcare worker shall assume the duties.  Under this law, failure of a provider to comply with these and other provisions is a basis for civil action and professional disciplinary action.  This law went into effect immediately.

 

On February 2, 2021, the Kentucky legislature overrode Gov. Andy Beshear’s veto of a measure (H2) allowing the Attorney General to seek injunctive relief as well as civil and criminal penalties in courts to prevent, penalize, and remedy violations regarding abortion facilities and administrative regulations.  This law went into effect immediately.

 

On March 31, 2021, the Kentucky legislature (H91) gave final passage to a proposed state constitutional amendment to protect human life, noting that its constitution does not secure or protect a right to abortion or require funding of abortion.  The measure will be voted on in a November 2022 statewide midterm election.

 

Kansas (1):

 

On February 4, 2021, the Kansas legislature passed House Concurrent Resolution 5003 (HCR5003) entitled the “Value Them Both Amendment” that would amend the bill of rights in the Kansas constitution by adding a new section stating that there is no constitutional right to abortion (except in cases of rape or incest, or when necessary to save the life of the mother) and that the state constitution does not require government funding of abortion. This ballot measure will be voted on in an August 2022 state election.

 

Louisiana (2):

 

On May 12, 2021, a Senate Concurrent Resolution (SCR38) designated January 22, 2022, as the “Day of Tears” in Louisiana to commemorate the over 61 million unborn children who have died in the U.S. since Roe v. Wade.  It encourages Louisiana citizens to lower their flags to half-staff on that day to mourn the innocent, pre-born children who have lost their lives due to abortion. Louisiana is the third state to enact a “Day of Tears,” following Alabama and Arkansas.

 

On May 27, 2021, a House Resolution (HR109) was enacted requesting the Louisiana State Law Institute to study provisions of state law relating to consent of a curator to an abortion or sterilization of a person with a disability, since the current law in Louisiana establishes no process, legal standard, or burden of proof and provides inadequate legal protections for a person with a disability who is faced with the possibility of a forced sterilization or forced abortion. The Louisiana State Law Institute must report its findings to the House of Representatives of the Legislature of Louisiana no later than February 1, 2022.

 

Michigan (2):

 

On January 28, 2021, a Senate Resolution (SR8) was enacted affirming the right to life of every unborn child in the state and calling for the enforcement of all laws regulating or limiting the practice of abortion.

 

On March 9, 2021, the appropriations bill H4047 became law.  One provision of the law (Sec. 259) refers to information-sharing requirements regarding COVID-19 vaccines that used aborted fetal tissue or human embryonic stem cell derivation lines in the production stating, “A recipient of a COVID-19 vaccine administered from the funds appropriated in part 1 for federal COVID immunization and vaccine grant reserve fund shall be provided with information or informed if and in what manner the development of the vaccine utilized aborted fetal tissue or human embryonic stem cell derivation lines.”  This law went into effect immediately.

 

North Dakota (3):

 

On March 31, 2021, Gov. Doug Bourgum (R) signed S2265, creating and enacting in the North Dakota Century Code a new section related to allowing unaccompanied homeless minors to consent to health care.  The new law contains a provision that does not authorize an unaccompanied homeless minor to consent to an abortion.

 

On April 28, 2021, Gov. Doug Bourgum (R) signed H1035 with amendments to the North Dakota Century Code, including changing the language for an infant born-alive from “an abandoned and deprived child” to “an abandoned child in need of protection” and defining those terms.

 

On May 20, 2021, Gov. Doug Bourgum signed into law S2030, which provides an appropriation to the state board of higher education for the higher education challenge matching grant program, awarding matching grants for student scholarships and the advancement of academics at institutions of higher education.  One eligibility requirement in this law is that “the institution is not sponsoring, partnering with, applying for grants with, or providing a grant subaward to any person or organization that performs, or promotes the performance of, an abortion unless the abortion is necessary to prevent the death of the woman, and not participating in or sponsoring any program producing, distributing, publishing, disseminating, endorsing, or approving materials of any type or from any organization, that between normal childbirth and abortion, do not give preference, encouragement, and support to normal childbirth.”

 

Ohio (1):

 

On January 9, 2021, Gov. Mike DeWine (R) signed into law the measure S260, which prohibits the use of telemedicine for chemical abortion. Under the law, a physician must be physically present at the location where the pregnant woman takes the initial dose of the drug. This law took effect in April 2021.

 

Oklahoma (8):

 

On April 26, 2021, Gov. Kevin Stitt (R) signed H1102 into law, an act amending physician licensure and unprofessional conduct laws.  Under this law, performing an abortion on the basis of mental or emotional health reasons will constitute unprofessional conduct.  Violations will include a penalty, including the suspension of the physician’s license for at least a year.  It has an exception in the cases of the life of the mother or “to prevent substantial or irreversible physical impairment of the mother that substantially increases the risk of death.”

 

On the same day, Gov. Kevin Stitt signed H1904 into law, amending current law to require that people who perform or induce abortions in the state must be a physician licensed to practice medicine in the state and be board-certified in obstetrics and gynecology.  This law is scheduled to take effect in November 2021.

 

On the same day, Gov. Kevin Stitt also signed H2441 into law, prohibiting the performance of an abortion without first determining whether there is a detectable fetal heartbeat and prohibiting an abortion after a heartbeat is detected, except in the cases of life or physical health of the mother.  A fetal heartbeat can be detected as early as six weeks of gestation.

All three laws are scheduled to take effect on November 1, 2021.

 

On April 27, 2021, Gov. Kevin Stitt signed the Defunding Fetal-Body-Parts Trafficking Act (S584) excluding providers from reimbursement through Medicaid or any other federal or state program or other funding if found to be in violation of trafficking fetal body parts.  The law is scheduled to take effect on July 1, 2021.

 

On the same day, Gov. Kevin Stitt signed S918 a trigger law repealing certain state laws relating to abortion. The act is scheduled to become effective on and after the certification of the state Attorney General that Oklahoma has the authority to prohibit abortion, which would happen if the U.S. Supreme Court overturns Roe v. Wade.

 

On the same day, Gov. Kevin Stitt also signed S960 relating to maternal and child health, amending current laws to increase the time to 30 days after birth that a parent may relinquish a child.  It specifies requirements for newborn safety devices and provides certain affirmative defense against prosecution for parents who voluntarily relinquish their child.  It also amends laws which relate to grants to private organizations to include providing services including, but not limited to, “healthcare services to mothers and infants for the purpose of reducing the rates of maternal mortality and infant mortality in this state by three percent within five years of the effective date of this act; provided, however, no funds shall be provided to an organization that provides, or whose affiliates provide, abortion services.”  This law is scheduled to take effect on July 1, 2021.

 

On May 28, 2021, Gov. Kevin Stitt signed S778, creating the “Oklahoma Abortion-Inducing Drug Risk Protocol Act” an informed consent law requiring that abortion-inducing drugs only be provided by a qualified physician who follows specific protocol laid out.  The law requires the woman’s informed consent to a chemical abortion, including information about the risks, the child’s probable gestational age, that she may see the remains of her child in the process of completing the abortion, and information about the abortion pill reversal. The doctor is required to schedule a follow-up visit.  The law also has reporting requirements to the state health department for the facility administering or prescribing the drug.  Additionally, abortion-inducing drugs are not to be provided in any school facility or on state grounds.  It requires criminal penalties for persons who violate the law, but no criminal penalties for the pregnant woman.  It also provides civil remedies, with no civil liability for the pregnant woman.  This law is scheduled to take effect on November 1, 2021.

 

On the same date, Gov. Kevin Stitt also signed S779, providing requirements and regulations for manufacturers and distributors of abortion-inducing drugs and creating the Oklahoma Abortion-Inducing Drug Certification Program.  It prohibits the distribution of abortion-inducing drugs through the mail or through telemedicine.  It contains penalties for non-complying physicians and has reporting requirements.  It also lists eligibility requirements for the physician in order to be certified and remain in good standing in this certification program.  The law also has reporting requirements.  Manufacturers or distributors in violation of this law are subject to penalties and civil remedies, including suspension of certification until noncompliance is remedied, fines, and other disciplinary actions.  This law is scheduled to take effect on November 1, 2021.

 

Missouri (2):

 

On April 22, 2021, Gov. Mike Parson (R) signed H429 and H430 into law authorizing an income tax deduction for those who foster or adopt a child. These laws modify provisions relating to benevolent tax credits for people in the state who proceed with an adoption of a child on or after January 1, 2022, making them eligible to receive a tax credit of up to $10,000 for nonrecurring adoption expenses for each child.  H430 also amends information about how taxpayers may claim a tax credit if they have contributed to a shelter for victims of domestic violence, a rape crisis center, or a maternity home, with a prior provision requirement that those centers do not perform, induce, or refer for abortions.

 

Mississippi (2):

 

On April 20, 2021, S2799 became law, relating to the Mississippi Medicaid Program.  One provision amends the state code regarding the licensing requirements of operating an abortion facility to say that no person “acting severally or jointly with any other person, shall establish, conduct, operate or maintain an ambulatory surgical facility or an abortion facility or a freestanding emergency room or a post-acute residential brain injury rehabilitation facility in this state without a license under this chapter.”  The law is scheduled to take effect on July 1, 2021.

 

On April 22, 2021, Gov. Tate Reeves (R) signed appropriations bill S2971 into law.  It includes amendments to tax credits for donating to eligible charitable organizations.  An eligible charitable organization must now provide documented written proof of its license and/or written contract with the Mississippi Department of Child Protection Services.  The law already included a provision that an eligible charitable organization must provide a written certification under penalty of perjury that the organization does not provide, pay for, or provide coverage of abortions and does not financially support any other entity that provides, pays for, or provides coverage of abortions.  This law went into effect immediately.

 

Montana (7):

 

On April 26, 2021, Gov. Greg Gianforte (R) signed H136 into law establishing the Pain-Capable Unborn Child Protection Act in the state, changing current law from prohibiting abortion after viability to prohibiting abortion for pain-capable unborn children (after five months of pregnancy), and making a violation of the law by the provider a felony.  The law has civil remedies for a woman on whom an abortion has been performed or attempted in violation of the law, or the father of the unborn child against the provider in violation.  This law is scheduled to take effect in October 2021.

 

On April 26, 2021, Gov. Greg Gianforte signed H171 into law adopting the “Montana Abortion-Inducing Drug Risk Protocol Act.”  It enumerates requirements for providing abortion-inducing drugs to pregnant women (including an in-person requirement), prohibits providing abortion-inducing drugs in schools and on school grounds, requires informed consent, requires reporting of chemical abortion and adverse events and complications, and provides criminal penalties, civil remedies, and professional sanctions for violations by providers.  A criminal penalty may not be brought against the pregnant woman on whom the chemical abortion is attempted or performed.  This law is scheduled to take effect in October 2021.

 

On the same day, Gov. Greg Gianforte also signed H140 amending Montana’s abortion laws to require that a pregnant woman have the opportunity to view an active ultrasound and ultrasound images and listen to the fetal heartbeat before undergoing an abortion, as well as providing a penalty for violations of this law by the person performing the abortion on a pregnant woman.  This law is scheduled to take effect in October 2021.

 

On April 29, 2021, H167 became public law, a referendum to adopt the “Montana Born-Alive Infant Protection Act.”  The act provides that infants born alive, including infants born alive after an abortion, are legal persons for all purposes under state laws, are entitled to the protections of the laws, including the right to appropriate and reasonable medical care and treatment, and requiring health care providers to take necessary actions to preserve the life of the born-alive infant.  It details criminal penalties for providers and a mandatory reporting provision for violations by providers. Qualified electors of Montana will vote on this at the general election held in November 2022.  If approved by the electorate, this law will take effect on January 1, 2023.

 

On April 30, 2021, Gov. Greg Gianforte signed into law S99, revising education laws and establishing parameters for K-12 human sexuality education.  One provision states that a school district, its personnel, or agents may not permit a person, entity, or any affiliate or agent to provide human sexuality education if it is a provider of abortion services.   This law is scheduled to take effect on July 1, 2021.

 

On the same day, Gov. Greg Gianforte signed into law H229, an act prohibiting qualified health insurance plans offered through a health insurance exchange in Montana from covering abortion.  This law is scheduled to take effect in October 2021.

 

On May 14, 2021, Gov. Greg Gianforte signed H620 revising Title X appropriations to ensure that they go to eligible entities.  One provision is that the state department of public health and human services may not enter into a contract with, or make a grant to, an entity that performs non-federally qualified abortions or maintains or operates a facility where non-federally qualified abortions are performed.  It also states that family planning services do not include abortion, abortion referrals, or counseling in favor of abortion.  This law is scheduled to take effect on June 30, 2021 and applies to Title X grant funds received after March 31, 2022.

 

 

Nebraska (2):

 

On April 26, 2021, Gov. Pete Ricketts (R) signed appropriations bills L379 and L380 into law.  Provisions in these laws ensure that general funds for FY2021-22 and FY 2022-23 are not used to perform or facilitate the performance of abortion or to counsel or refer for abortion.  Further, L380 states that funds for FY2021-22 for biomedical research may not be used “for research involving the use of human fetal tissue obtained in connection with the performance of an induced abortion or involving the use of human embryonic stem cells.”  These laws are scheduled to take effect on July 1, 2021.

 

South Carolina (1):

 

On February 18, 2021, Gov. Henry McMaster (R) signed the measure S1, a fetal heartbeat law, which would prohibit abortions after a heartbeat is detected, which is as early as six weeks of gestation.  A federal court issued a preliminary injunction blocking enforcement of this act on March 19, 2021.^[5]

 

South Dakota (5):

 

On February 25, 2021, Gov. Kristi Noem (R) signed a measure (H1051) to preserve the life and health of any child born alive following an attempted abortion and to provide a mechanism for civil penalties, and disciplinary action for providers who do not comply.  Mothers on whom an abortion is performed or attempted to be performed may obtain damages.  It also has an amendment requiring state reporting of all abortions.  This law is scheduled to take effect in July 2021.

 

On March 29, 2021, Gov. Kristi Noem signed four pro-life measures.   The first measure (H1110) is to prohibit the performance of abortions due to Down syndrome and to provide for civil action against any person for intentional, knowing, or negligent failure to comply.  No penalty may be assessed against the woman upon whom the abortion is performed or attempted to be performed and she may bring a civil action on a person who fails to comply with this act.   It has a life of the mother exemption.  This law is scheduled to take effect in July 2021.

 

The second measure (H1114) defines induced abortion as “the intentional termination of the life of a human being in the uterus.”

 

The third measure (H1130) establishes informed consent requirements before a drug-induced abortion. Voluntary and informed written consent of the pregnant woman is required before an abortion may be performed, unless there is a medical emergency.  Part of the written statement must include “That the abortion will terminate the life of a whole, separate, unique, living human being and that the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota.”  The statement must also include a description of all known medical risks.  It also requires the physician to tell the woman at least 24 hours in advance about medical assistance benefits for prenatal care, childbirth, and neonatal care; that the father of the unborn child is legally responsible to provide financial support for their child after birth; and to provide the contact information of a pregnancy help center in reasonable proximity to the abortion facility. There are also requirements that a statement be provided to the woman in pre-abortion counseling, and at discharge, about how she can discontinue the abortion by seeking the assistance of a physician immediately, and providing her with contact information of physicians who can assist.  This law is scheduled to take effect in July 2021.

 

The fourth measure (S183) concerns declaring certain contracts void if they coerce or compel an abortion and that coercion of a pregnant woman to undergo an abortion would be considered a misdemeanor and a subsequent offense a Class 6 felony.  It also provides for the attorney general to be able to make an investigative demand for a report on suspect practices.

 

These laws are scheduled to take effect in July 2021.

 

Tennessee (2):

 

On May 6, 2021, Gov. Bill Lee (R) signed H1181 into law, requiring that disposition of fetal remains from a surgical abortion performed at an abortion facility be by burial or cremation.  Under the law, a pregnant woman who has a surgical abortion has the right to determine whether the final disposition of the fetal remains is by cremation or interment and also the location of the final disposition.  An abortion facility is required to have evidentiary documentation demonstrating the date and method of the disposition of fetal remains from surgical abortions performed or induced at that facility.  This law is scheduled to take effect on July 1, 2021.

 

On May 11, 2021, Gov. Bill Lee also signed S1370 into law, a measure that states that there is no cause of action for wrongful birth based on a claim that a person once conceived would not or should not have been born, or for wrongful life based on a claim that a person would not have been conceived or, once conceived, would or should have been aborted.  It defines a person as one conceived at the moment of fertilization.  This law took effect immediately.

 

Texas (3):

 

On May 19, 2021, Gov. Abbott (R) signed S8, a heartbeat law, prohibiting abortions once a fetal heartbeat is detected.  A fetal heartbeat can be detected as early as six weeks of gestation.  Its enforcement mechanism is unlike any other for such laws.  This law will be enforced exclusively through private civil actions.  Under the law, any person, other than an officer or employee of a state or local governmental entity in the state, may bring a civil action against any person who performs or induces an abortion in violation of the law or “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance.”  On May 20, 2021, the Biden Administration called it “the most restrictive measure yet in the nation.”^[6]  This law is scheduled to take effect on September 1, 2021.

On May 26, 2021, the Senate agreed to by simple resolution on SR469, which includes a provision for a reappropriation of funds for an alternatives to abortion program.  On May 27, 2021, the House agreed to by simple resolution HR1701 with the same provision.

 

Utah (1):

 

On March 16, 2021, Gov. Spencer Cox (R) signed a shared medical costs measure (H113).  One of the provisions of this measure is that a biological father of a child has a duty to pay 50% of the mother’s pregnancy expenses, unless the mother receives an abortion without the biological father’s consent.  If a mother receives an abortion without the biological father’s consent, the biological father owes no duty except in cases of rape, incest, or life of the mother.

 

Washington (1):

 

On May 12, 2021, Gov. Jay Inslee (D) signed into law S5185, an informed consent measure for health care decisions amended to define someone who has the capacity to make health care decisions as someone who is of the age of consent, that is, over the age of majority.  A provision that was already included is a requirement for a “patient decision aid” such as a written, audiovisual, or online tool “that provides a balanced presentation of the condition and treatment options, benefits, and harms, including, if appropriate, a discussion of the limits of scientific knowledge about outcomes, for any medical condition or procedure, including abortion.”  This law is scheduled to take effect on January 1, 2022.

 

West Virginia (4):

 

On February 17, 2021, the West Virginia Senate agreed to SR7 by simple resolution.  It is a measure that recognizes pregnancy care centers for their dedication and commitment to assisting women, men, and families facing an unexpected pregnancy.

 

On April 9, 2021, Gov. Jim Justice (R) signed a telemedicine expansion measure (H2024) that has a provision stating, “a physician or health care provider may not prescribe any drug with the intent of causing an abortion.”

 

On April 15, 2021 Gov. Jim Justice signed H2094 into law relating to the juvenile restorative justice programs in the state. One provision excludes abortion from the definition of health care treatment.  This law is scheduled to take effect in July 2021.

 

On April 28, 2021, Gov. Jim Justice signed the “Second Chances at Life Act of 2021” (H2982).  This law amends the West Virginia code to require informed consent regarding chemical abortions (including the medical risks), specifying the possibility of the reversal of a chemical abortion, and providing liability protection to a physician prescribing the abortion pill reversal.  It also requires that a woman be given information at least 24 hours before the abortion procedure about medical assistance benefits she may receive for prenatal care, childbirth, and neonatal care and that the father is liable to assist with child support.  She must also be presented with a form prior to an abortion about her right to view or decline to view her ultrasound.  Lastly, it requires the health care worker to inform her that state-provided materials describing the embryo or fetus and agencies that offer alternatives to abortion are available.  This law is scheduled to take effect in July 2021.

 

Wyoming (2):

 

On April 6, 2021, Gov. Mark Gordon (R) signed into law S34 (Act 61) which is an infant born-alive measure.  It amends current law to require that “the commonly accepted means of care that would be rendered to any other infant born alive shall be employed in the treatment of any viable infant aborted alive.  Any physician performing an abortion shall take medically appropriate and reasonable steps to preserve the life and health of an infant born alive.”  This law is scheduled to take effect on July 1, 2021.

 

On April 12, 2021, Gov. Mark Gordon signed into law H253 (Act 89), prohibiting the University of Wyoming and community colleges in the state from expending funds on abortions or insurance coverage for abortions.  This law is scheduled to take effect on July 1, 2021.

 

CONCLUSION

 

There have been a staggering number of pro-life bills and provisions introduced at the state level in 2021, making it a banner year for such legislation.  The many types of pro-life bills and provisions introduced also show that the states have found diverse ways to reject a radical abortion agenda and build a culture of life.  America will be well-prepared to usher in a post-Roe era that protects and supports both women and their children.

 

 

Arina O. Grossu, M.A., M.S. is a scholar, writer, and speaker on sanctity of human life and bioethics issues. She is a guest contributor of the Charlotte Lozier Institute.

 

 

[1] https://www.guttmacher.org/article/2021/04/2021-track-become-most-devastating-antiabortion-state-legislative-session-decades, Last accessed on April 30, 2021.

[2] The bill count includes bills that were introduced from January to May 2021, pre-filed for the 2021 legislative session, or advanced during January to May 2021.

[3] https://sanctuarycitiesfortheunborn.org/, Last accessed on June 8, 2021.

[4] https://www.pewresearch.org/fact-tank/2020/01/21/do-state-laws-on-abortion-reflect-public-opinion/ Last accessed on April 20, 2021.

[5] https://www.jurist.org/news/2021/03/federal-court-blocks-south-carolina-fetal-heartbeat-abortion-ban/, Last accessed on April 20, 2021.

[6] https://www.whitehouse.gov/briefing-room/press-briefings/2021/05/20/press-briefing-by-press-secretary-jen-psaki-may-20-2021/, Last accessed on May 27, 2021.