A rush to impose abortion bans once the Supreme Court overturned Roe v. Wade created a web of laws in different states with contradictory terms, creating confusion for healthcare providers and insurance companies.
In Oklahoma, for example, Gov. Kevin Stitt (R) has signed a flurry of abortion bans over the past year, confident that an end to Roe was imminent. One law signed in May banned abortion from the moment of conception unless it is to save the life of the mother or if the pregnancy is the result of incest, rape, or sexual assault that has been properly reported to law enforcement. Stitt signed another law in May that banned the procedure after fetal cardiac activity is detected, which is typically around six weeks, and makes no exceptions for rape or incest. It would also deputize civilians to sue anyone suspected of aiding and abetting the procedure for up to $10,000, following in the footsteps of a similar abortion ban passed in Texas last year that has so far held up in court.
HOUSE DEMOCRATS ADVANCE BILL WITH FEDERAL FUNDING FOR ABORTIONS
Another law signed in April, which is set to go into effect in August, makes it a felony for doctors to perform abortions, punishable by up to 10 years in prison and up to $100,000 in fines. It makes an exception for cases in which the mother’s life is at risk but not for cases of rape and incest. The hodgepodge of laws leaves providers in the dark about when they are legally authorized to perform an abortion.
“One thing that’s going to happen in these next few months and maybe years or a number of years, it’s going to be a lot of confusion,” said Rachel Rebouche, an expert in reproductive health law and the interim dean of the Temple University Beasley School of Law. “The legal landscape is likely very complex, but it will be an issue that starts to change and be influenced by state politics and state legislators.”
Gov. Doug Ducey (R-AZ) and his administration have provided conflicting information about which of their state’s myriad abortion restrictions are currently enforceable. The state has a law banning abortion dating to 1901, before Arizona gained its statehood. It was enjoined in 1973, when the Supreme Court established a constitutional right to an abortion in Roe. In addition to that pre-Roe abortion ban, Ducey signed a bill into law in March that outlaws the procedure after 15 weeks, with no exceptions for victims of rape or incest.
Ducey announced at the time that the 15-week ban would supersede the sweeping pre-Roe ban, something the bill’s language does not say. Meanwhile, Arizona Attorney General Mark Brnovich said on Wednesday that he would use his authority to set aside the 1973 injunction on the pre-statehood ban and restore it, putting him at odds with Ducey.
Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws. pic.twitter.com/jvjKXaXKwd
— Mark Brnovich (@GeneralBrnovich) June 29, 2022
In Louisiana, the state legislature has signed several trigger bans, designed to take effect immediately with the overturning of Roe, since 2006, leading to confusion among healthcare providers there over which one is enforceable and which ones are null and void. The Center for Reproductive Rights, on behalf of Louisiana abortion providers, sued the state over the vague tangle of laws that went into effect last Friday. Orleans Parish Civil District Judge Robin Giarrusso granted a temporary reprieve on Monday until holding a second hearing on whether to keep the laws blocked or put them back in effect for July 8.
Wisconsin lawmakers are in a legislative tug of war with Gov. Tony Evers, a Democrat and abortion-rights proponent, and Attorney General Josh Kaul. The state’s Republican-controlled legislature has refused to repeal an 1849 ban that has remained essentially dormant since the high court’s 1973 decision. Meanwhile, Evers and Kaul launched a legal fight earlier this week arguing that a 1985 statute establishing the right to an abortion up to the point of viability overrules the 19th-century law. Evers convened a special session in the legislature last week regarding the pre-Roe ban, but lawmakers gaveled in and adjourned within seconds without taking any action.
Evers and Kaul are seeking to reinstate the standard for legal abortion defined under Roe. The point of viability, or the point at which the child can survive outside the womb, was the limit established by the 1973 ruling.
“Wisconsin is one of those middle-ground states where a political question will be: How far do you restrict abortion?” Rebouche said. “There’s not necessarily political will to ban it.”
The changing landscape of abortion laws is expected to affect the health insurance system, which already had to comply with different states’ own restrictions on paying for abortion care.
Seven states — California, Illinois, Maine, Maryland, New York, Oregon, and Washington — require plans regulated by the state to cover abortions. But more than half of states prohibit health insurance plans on the Obamacare marketplace from covering abortion, which is not expected to change.
Insurers will have to contend with state laws that allow private citizens to sue any individual who aids someone in securing an abortion, such as the law in Texas. Providing abortion coverage for employees or reimbursing them for the cost of traveling out of state for an abortion could be considered aiding and abetting an abortion, though it remains unclear. The Texas-style laws that are gaining ground across red state legislatures could affect abortion coverage across state lines.
That would not stop private companies from including coverage in their employee insurance plans to pay for out-of-state travel to obtain an abortion. Major companies such as Disney, Paramount Global, and JPMorgan Chase have already told employees they will cover the costs of abortion-related travel for their workers.
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“As we saw with the Affordable Care Act with coverage of contraception and denial of abortion coverage, it’s a very controversial issue,” Rebouche said. “And insurance companies are companies like everybody else. … Their response will depend on what message they want to send and what pressure they get from their subscribers.”
