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Abortion Policies and Cases to Watch in 2019

While the Trump administration mulls over the domestic "gag rule" and state requests to defund Planned Parenthood, abortion bills are making their way through legislatures and courts.

Abortion protester with umbrella standing outside of abortion clinic with sign.
An anti-abortion protester stands in front of a clinic that performs abortions in Texas.
(TNS/Molly Hennessy-Fiske)


  • The Trump administration is expected to release the final domestic "gag rule," which is being challenged in court, this month.
  • Three conservative states are awaiting federal approval to ban Planned Parenthood from receiving Medicaid funding.
  • Abortion will likely be a major topic in legislative sessions this year. Meanwhile, recently passed abortion laws will face legal muster.
Abortion was a focal point of politics and policy in 2018, and that's likely to remain true this year.

Last year, the U.S. Supreme Court ruled in favor of anti-abortion advocates in several cases, including one involving an immigrant teen and another about what information crisis pregnancy centers have to give patients.

Shortly after those decisions, Justice Anthony Kennedy, a swing vote, announced his retirement and was replaced by judge Brett Kavanaugh, giving the court a conservative majority. While abortion rights groups worry Kavanaugh's appointment will lead to more restrictions on abortion, he handed Planned Parenthood a victory in December by voting not to take a case from conservative states that want to defund the organization.

At the ballot box in November, abortion rights groups largely suffered losses. Voters in Alabama and West Virginia passed laws that will take away a woman's right to an abortion in the event that Roe v. Wade, the 1973 case that legalized the procedure, is overturned or severely gutted by the new Supreme Court.

Looking ahead, here are a few issues that advocates have their eyes on in 2019.


Domestic ‘Gag Rule’

In May, the Trump administration released a rule that would prohibit publicly funded health centers from performing or referring patients to abortion services. It's referred to as a "domestic gag rule" because it's similar to the "global gag rule," which bans U.S. aid money from going to overseas organizations that provide or support abortions.

The proposed rule politicizes Title X, a historically bipartisan federal grant program exclusively for family planning and reproductive health. Grantees range from Planned Parenthood clinics to city health departments to community health centers.

The next round of grant applications is due Jan. 14. Reproductive health experts expect the final rule to drop just before then.

“The proposed changes could make it extremely difficult for providers to provide comprehensive health services that millions of people rely on,” says Audrey Sandusky, spokesperson for the National Family Planning and Reproductive Health Association, which represents Title X clinics. “We’re prepared to challenge the rule and do what it takes to protect patients.”

The organization is currently fighting the proposed change in court, along with the American Civil Liberties Union (ACLU) and three Planned Parenthood affiliates. A federal judge tossed the suit in July, but the ACLU appealed that decision, and oral arguments took place in the U.S. Court of Appeals in December.


Medicaid Funding

Congressional Republicans have tried to keep Planned Parenthood from receiving Medicaid funding -- which is separate from Title X funding -- but with Democrats taking control of the House this month, their opportunity appears gone. Some conservative states, however, are taking this matter into their own hands.

South CarolinaTennessee and Texas have all submitted waivers asking the federal government for permission to remove abortion providers from their Medicaid programs. The Trump administration, which has pushed anti-abortion policies, is expected to weigh in on those waivers this year. If they are approved, more states are expected to follow with similar requests.

To date, Arkansas is the only state to cut Planned Parenthood out of its Medicaid program -- a legally questionable move that’s making its way through the courts.


State Abortion Legislation

Now that the Supreme Court is solidly conservative, red states are expected to test the boundaries on what abortion restrictions the courts will allow, and liberal states are expected to pass laws securing or improving access to the procedure.

“It’s almost as if more conservative states are jockeying to be the state that’ll pass the law that will end up revisiting Roe,” says Elizabeth Nash, state policy expert for the Guttmacher Institute, which supports abortion rights. 

The Ohio Legislature, for instance, raced in the final months of 2018 to pass a bill that would outlaw abortion after six weeks of pregnancy. Republican Gov. John Kasich, however, vetoed it.

Iowa and Mississippi did successfully pass laws banning abortion after 15 weeks and six weeks, respectively. Both, however, were struck down in lower courts but could eventually land at the Supreme Court.

On the other side of the spectrum, legislators in New Mexico, New York and Rhode Island have indicated that they’ll attempt this year to repeal pre-Roe state laws that criminalize abortion.

“Those states are thinking about ways to protect abortion in ways they’d hadn’t been thinking about before,” says Nash.

This appears in the Health newsletter. Subscribe for free.

Mattie covers all things health for Governing.

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