Support for All Pregnancy Options Act

Summary: The Support for All Pregnancy Options Act demonstrates how the abortion rights movement supports a range of common sense solutions to reduce unintended pregnancy, to make abortion safe, accessible and affordable to all, and to support women who bring their pregnancies to term.

Background Summary

The abortion rights movement supports the full range of options for women who are or might become pregnant. Reproductive rights and justice includes policies to reduce unintended pregnancy; to make abortion safe, accessible and affordable to all; and to support women who bring their pregnancies to term.

Women need access to all reproductive options and, therefore, we must make all forms of contraception available and affordable. Each year nearly half of pregnancies are unintended. As a Colorado program dramatically proved, when all contraceptive options are made fully available to women, it contributes to the dramatic decline of unintended pregnancies.

Women need access to all reproductive options and, therefore, we must make abortion more affordable. Thirty-three states and the District of Columbia prohibit the use of state Medicaid funds for abortions, except in limited cases. Twenty-five states prohibit abortion coverage in their insurance exchanges. Twenty-one states prohibit abortion coverage for state employee health plans. And ten states prohibit abortion coverage in standard private insurance plans. No woman should have the decision to have, or not to have, an abortion made for her based on her ability or inability to afford the procedure.

Women need access to all reproductive options and, therefore, we must we make abortion more accessible. Because of restrictive laws and physical threats, the number of abortion providers has declined in recent years. The American College of Obstetricians and Gynecologists (ACOG) recommends allowing trained advanced practice clinicians (APCs)—nurse practitioners, certified nurse-midwives and physician assistants—to perform aspiration and medication abortions, yet only a few states allow it.

Women need access to all reproductive options and, therefore, we must ensure fair workplace treatment of pregnant women and mothers. Pregnant women and women who have recently given birth need reasonable accommodations in the workplace.

Women need access to all reproductive options and, therefore, we must ensure that reproductive healthcare clinics are not forced to close because of politics. At least 24 states have Targeted Regulation of Abortion Providers or “TRAP laws” that are designed to close abortion clinics. Most often, the restrictions dictate that abortions be performed at sites that are the functional equivalent of ambulatory surgical centers, or even hospitals, which makes the delivery of health care services prohibitively expensive. Other TRAP laws require clinicians at abortion facilities to have admitting privileges at a local hospital or mandate transfer agreements with hospitals, effectively giving hospitals veto power over whether an abortion clinic can exist.


Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Support for All Pregnancy Options Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1)      Family planning is basic health care for women. Access to contraception helps women prevent unintended pregnancy and control the timing and spacing of planned births.

2)      Abortion care is one of the safest medical procedures in the United States.

3)      Approximately three in ten women will have an abortion in their lifetimes, and will need access to safe, legal facilities to obtain abortion care without delay.

4)      Women need access to all reproductive options and, therefore, we must make all forms of contraception available and affordable. The United States has one of the highest rates of unintended pregnancy among industrialized nations. Each year, nearly half of pregnancies are unintended. Women rely on contraception for a range of medical purposes in addition to birth control, such as regulation of cycles and endometriosis. Women need complete and medically accurate information about every contraceptive option, including emergency contraception, and they need pharmacies to deliver the chosen option without delay.

5)      Women need access to all reproductive options and, therefore, we must make abortion more affordable. No woman should have the decision to have, or not to have, an abortion made for her based on her ability or inability to afford the procedure. Since 1976, the federal government has withheld funds for abortion coverage through the Medicaid program as well as other federal health plans and programs. Seventeen states, however, have policies that include Medicaid abortion coverage because it is wrong to coerce women who cannot afford abortion to, for no other reason, carry a pregnancy to term.

6)      Women need access to all reproductive options and, therefore, we must we make abortion more accessible. The number of abortion providers has decreased due to practice restrictions and threats of violence. The American College of Obstetricians and Gynecologists (ACOG) recommends allowing advanced practice clinicians (APCs)—nurse practitioners, certified nurse-midwives and physician assistants—to perform aspiration abortions and medication abortions. Studies show that trained APCs are fully qualified to provide aspiration and medication abortion services.

7)      Women need access to all reproductive options and, therefore, we must ensure fair workplace treatment of pregnant women and mothers. Women in the workplace who request accommodations in order to maintain a healthy pregnancy or to recover from childbirth are being removed from their positions, placed on unpaid leave, or fired. Not only do these policies harm pregnant women and mothers, but all women who employers may perceive negatively because of their potential to get pregnant.

8)      Women need access to all reproductive options and, therefore, we must expand Medicaid to ensure that women and their families have access to health care coverage.  Health coverage for all is essential, but this is especially true for pregnant women and young children. Pregnant women are far more likely to obtain needed pre-natal care when they have insurance. Further, unhealthy children tend to grow up to be unhealthy adults, and uninsured preschoolers struggle more when they reach grade school because of untreated medical conditions. Approximately seven percent of all children age five and younger are uninsured, many of them because they live in states without Medicaid expansion under the Affordable Care Act.

9)      Women need access to all reproductive options and, therefore, we must ensure that reproductive healthcare clinics are not forced to close because of politics. In 2011, 89 percent of U.S. counties lacked an abortion facility. In 2015, four states had only one abortion provider, and at least ten states had three or fewer abortion providers. Clinic closures can force women to travel long distances to reach the nearest clinic, or force women to delay care as they arrange transportation, time off from work, and save additional money for travel or lodging costs. Women who face these obstacles are more likely to seek out less safe alternatives to legal abortion.

10)  Women need access to all reproductive options and, therefore, we must prevent discrimination that limits the availability of foster care and adoption. There is a shortage of qualified individuals willing to adopt or foster a child in the child welfare system. As a result, thousands of foster children lack a permanent and safe home. Child welfare agencies must not use sexual orientation, gender identity or marital status as a means to discriminate in adoption and foster care recruitment, selection and placement.

(B) PURPOSE—This law is enacted to protect the health, safety and welfare of women by supporting their rights to avoid pregnancy, obtain an abortion, or have children.

SECTION 3. WOMEN’S RIGHT TO THE PILL

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1) “Contraception” or “contraceptive” means any drug or device approved by the Food and Drug Administration to prevent pregnancy.

2) “Emergency contraception” means one or more drugs, used separately or in combination to prevent pregnancy within a medically-recommended amount of time after sexual intercourse.

3) “Employee” means a person hired, by contract or any other form of an agreement, by a pharmacy.

4) “Pharmacy” means an entity that is licensed by the state under [insert appropriate citation] to engage in the business of selling prescription drugs at retail, and employs one or more employees.

5) “Product” means a Food and Drug Administration-approved drug or device.

6) “Professional clinical judgment” means the use of professional knowledge and skills to form a clinical judgment, in accordance with prevailing medical standards.

7) “Without delay” with respect to a pharmacy providing, providing a referral for, or ordering contraception, or transferring the prescription for contraception, means within the usual and customary timeframe at the pharmacy for providing, providing a referral for, or ordering other products, or transferring the prescription for other products, respectively.

(B) DUTY OF PHARMACIES

1) If a customer requests a contraceptive that is in stock, the pharmacy shall ensure that the contraceptive is provided to the customer without delay.

2) If a customer requests a contraceptive that is not in stock, the pharmacy shall immediately inform the customer that the contraceptive is not in stock and without delay offer the customer the following options:

a)      If the customer prefers to obtain the contraceptive through a referral or transfer, the pharmacy shall locate a pharmacy of the customer’s choice or the closest pharmacy confirmed to have the contraceptive in stock; and refer the customer or transfer the prescription to that pharmacy.

b)      If the customer prefers for the pharmacy to order the contraceptive, the pharmacy shall obtain the contraceptive under the pharmacy’s standard procedure for expedited ordering of medication and notify the customer when the contraceptive arrives.

3) The pharmacy shall ensure that its employees do not:

a)      Intimidate, threaten, or harass customers in the delivery of services relating to a request for contraception;

b)      Interfere with or obstruct the delivery of services relating to a request for contraception;

c)      Intentionally misrepresent or deceive customers about the availability of contraception or its mechanism of action;

d)      Breach medical confidentiality with respect to a request for contraception or threaten to breach such confidentiality; or

e)      Refuse to return a valid, lawful prescription for contraception upon customer request.

4) This section does not prohibit a pharmacy from refusing to provide a contraceptive to a customer in accordance with any of the following:

a)      If it is unlawful to dispense the contraceptive to the customer without a valid, lawful prescription and no such prescription is presented;

b)      If the customer is unable to pay for the contraceptive; or

c)      If a licensed pharmacist refuses to provide the contraceptive on the basis of a professional clinical judgment.

5) Pharmacies shall stock over-the-counter emergency contraception and make it available for purchase without a prescription in accordance with the U.S. Food and Drug Administration protocol.

(C) ENFORCEMENT

1) The state [Board of Pharmacy] shall enforce this section in accordance with [section of law dealing with violations of Board policy].

2) Any person aggrieved as a result of a violation of this section may, in any court of competent jurisdiction, commence a civil action against the pharmacy involved to obtain appropriate relief, including actual and punitive damages, injunctive relief, and a reasonable attorney’s fee and cost.

SECTION 4. ABORTION COVERAGE EQUITY

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth and any related services, including but not limited to diagnostic, counseling, referral, or follow up services.

2)      “State” means the state, any state agency, and every county, city, town, municipal corporation, quasi-municipal corporation, and public institution in the state.

(B) POLICY TO COVER ABORTION

Abortion shall be covered in all types of health insurance offered, sold, or purchased in this state, including all private plans, all state-funded plans, and all state-provided benefits.

(C) RESTRICTIONS REPEALED

1)      Section XXX [any provision of law that prohibits abortion care in private health insurance plans] is hereby repealed.

2)      Section XXX [any provision of law that prohibits abortion care in state employee health insurance plans] is hereby repealed.

3)      Section XXX [any provision of law that prohibits abortion care in the state insurance exchange] is hereby repealed.

4)      Section XXX [any provision of law that prohibits abortion care in Medicaid coverage] is hereby repealed.

5)      Section XXX [any provision of law that prohibits abortion care in any other state-funded insurance program] is hereby repealed.

(D) SEVERABILITY

The provisions of this Section shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid, is preempted by federal law or regulation, or results in noncompliance with federal requirements that are a condition to the allocation of federal funds to the state, those words are inapplicable and the validity of the remainder of this Act shall not be affected.

SECTION 5. QUALIFIED PROVIDERS OF ABORTION

(A) DEFINITIONS—In this section:

1)      “Aspiration abortion” means medical treatment intended to induce the termination of a pregnancy by dilating the cervix and using suction to remove the fetus and related pregnancy material from the uterus.

2)      “Certified nurse-midwife” means a person licensed under [insert relevant provision].

3)      “Medication abortion” means the use of medication intended to terminate a pregnancy so that it does not result in a live birth.

4)      “Nurse practitioner” means a person licensed under [insert relevant provision].

5)      “Physician assistant” means a person licensed under [insert relevant provision].

(B) QUALIFIED PROVIDERS INCLUDE NURSE PRACTITIONERS AND NURSE-MIDWIVES

1)      A nurse practitioner or a certified nurse-midwife is authorized to prescribe and supervise medication abortions and to perform an aspiration abortion if he or she has successfully completed training and achieved clinical competency and adheres to standardized procedures approved by the [insert relevant board governing nurse practitioners and certified nurse-midwives].

2)      It is unprofessional conduct for any nurse practitioner or certified nurse-midwife to prescribe or supervise an aspiration or medication abortion without prior successful completion of training and validation of clinical competency.

3)      The [insert relevant board governing nurse practitioners and certified nurse-midwives] shall issue rules for training, clinical competency, and standardized procedures for medication abortion and aspiration abortion.

(C) QUALIFIED PROVIDERS INCLUDE PHYSICIAN ASSISTANTS

1)      A physician assistant is authorized to prescribe and supervise medication abortions and to perform an aspiration abortion if he or she has successfully completed training and achieved clinical competency and adheres to standardized procedures approved by the [insert relevant board governing physician assistants].

2)      It is unprofessional conduct for any physician assistant to prescribe or supervise an aspiration or medication abortion without prior successful completion of training and validation of clinical competency.

3)      The [insert relevant board governing physician assistants] shall issue rules for training, clinical competency, and standardized procedures for medication abortion and aspiration abortion.

[Bill drafting note: You will have to consult with local advocates and the effected healthcare professional associations before writing this bill. Healthcare regulatory schemes often differ from state to state. In addition, there are various ways to achieve the same goal, depending on the wording of your state’s “physician-only” provision (that is, existing statutory language that an abortion can be performed only by a physician):

a)      A few states have used regulatory processes and a few have used Attorney General opinions to allow APCs to practice despite so-called “physician-only” laws. These non-legislative avenues might be possible in your state.

b)      Depending on the state, you might simply repeal the “physician-only” provision; the underlying statutory and regulatory scheme might be sufficient to allow APCs to handle both aspiration and medication abortions.

c)      Alternatively, by inserting definitions of APCs or by using current definitions in state law, you might amend the existing “physician-only” provision to add APCs, making it a physician and APCs only law. Unless you add additional restrictions, this approach would cover both aspiration and medication abortions.]

SECTION 6. PREGNANT WORKERS FAIRNESS

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      "Pregnancy” means pregnancy, childbirth, or a related condition, including, but not limited to, lactation.

2)      “Reasonable accommodation” means such accommodation that can be made for an employee that shall not cause undue hardship in the conduct of the employer’s business. Accommodations may include, but are not limited to, acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for expressing breast milk.

3)      “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as: the nature and cost of the accommodation; the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer. The fact that the employer provides or would be required to provide a similar accommodation to another employee or employee(s) shall create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.

(B) SEX DISCRIMINATION—It is unlawful sex discrimination for an employer to:

1)      Fail or refuse to treat an employee or applicant for employment that the employer knows or should know is affected by pregnancy as well as the employer treats or would treat any other employee or applicant not so affected but similar in the ability or inability to work, without regard to the source of any condition affecting the other employee’s or applicant’s ability or inability to work;

2)      Fail or refuse to make reasonable accommodations to the known limitations related to the pregnancy of an applicant for employment or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer;

3)      Deny employment opportunities to a job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy of an employee or applicant for employment;

4)      Require an applicant for employment or employee affected by pregnancy to accept an accommodation that such applicant or employee chooses not to accept, if such applicant or employee does not have a known limitation related to pregnancy or if such accommodation is unnecessary for the applicant or employee to perform the essential duties of her job;

5)      Require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations related to the pregnancy of the employee; or

6)      Take adverse action against an employee in the terms, conditions or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy of the employee.

(C) NOTICE OF RIGHTS

1)      An employer shall provide written notice in a form and manner to be determined by the [Equal Rights Commission] of the right to be free from discrimination in relation to pregnancy, including the right to reasonable accommodations:

a)      To all employees within 120 days of the effective date of this provision;

b)      To new employees at the commencement of employment;

c)      To any employee who notifies the employer of her pregnancy, within 10 days of such notification; and

d)      By conspicuously posting at an employer's place of business in an area accessible to employees.

2)      The [Equal Rights Commission] shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies and job applicants about their rights and responsibilities under this provision.

(D) NO DIMINUTION OF RIGHTS

This provision shall not be construed to preempt, limit, diminish or otherwise affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage for pregnancy under any other provision of law.

SECTION 7. MEDICAID EXPANSION

After section XXX, the following new section XXX shall be inserted:

[Bill drafting note: In some states, Medicaid expansion can be achieved without enacting a new statute.]

(A) DEFINITIONS

“Department” means the Department of [Health].

(B) MEDICAID EXPANSION UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE ACT

1)      Subject to the availability of federal financial participation pursuant to an approved state plan amendment, the following individuals or groups shall receive medical assistance through [state Medicaid program] pursuant to this section and [insert relevant state law pertaining to Medicaid eligibility]:

a)      Parents and caretaker relatives of children who are eligible for the medical assistance program or the children's basic health plan, whose family income does not exceed 133 percent of the federal poverty line, adjusted for family size.

b)      Individuals without a dependent child in the home, as described in section 1902 (a) (10) (A) (i) (VIII) of the Social Security Act, 42 U.S.C. SEC 1396a, who have attained 19 years of age but have not attained 65 years of age, and whose family income does not exceed 133 percent of the federal poverty line, adjusted for family size.

c)      In accordance with Section 1902(a)(10)(A)(i)(IX) of the federal Social Security Act (42 U.S.C. Sec. 1396a(a)(10)(A)(i)(IX)), individuals who are in foster care on his or her 18th birthday until his or her 26th birthday. In addition, the Department shall implement the federal option to provide [name of program] benefits to individuals who were in foster care and enrolled in Medicaid in any state.

2)      A foster care adolescent who is in foster care in this state on his or her 18th birthday shall be enrolled to receive benefits under this section without any interruption in coverage and without requiring a new application.

3)      The Department shall develop procedures to identify and enroll individuals who meet the criteria for eligibility in this section, including, but not limited to, former foster care adolescents who were in foster care on their 18th birthday and who lost coverage as a result of attaining 21 years of age. The Department shall work with counties to identify and conduct outreach to former foster care adolescents who lost coverage as a result of attaining 21 years of age, to ensure they are aware of the ability to reenroll under the coverage provided pursuant to this section.

4)      The Department shall develop and implement a simplified redetermination form for this program. A beneficiary qualifying for the benefits extended pursuant to this section shall fill out and return this form only if information known to the Department is no longer accurate or is materially incomplete.

5)      The Department shall seek federal approval to institute a renewal process that allows a beneficiary receiving benefits under this section to remain on [Medicaid] after a redetermination form is returned as undeliverable and the county is otherwise unable to establish contact. If federal approval is granted, the recipient shall remain eligible for services under the [Medicaid] fee-for-service program until the time contact is reestablished or ineligibility is established, and to the extent federal financial participation is available.

6)      The Department shall terminate eligibility only after it determines that the recipient is no longer eligible and all due process requirements are met in accordance with state and federal law.

SECTION 8. REPEAL OF TARGETED REGULATION OF ABORTION PROVIDERS

1)      Section XXX [any provision of law that singles out abortion facilities or personnel for requirements that are more burdensome than those imposed on facilities that provide medically comparable procedures] is hereby repealed.

2)      Section XXX [any provision of law that is the proximate cause of the closure of an abortion facility or facilities and which has not been proven by clear and convincing evidence necessary to prevent a bona fide threat to patient safety] is hereby repealed.

3)      Section XXX [any provision that includes onerous licensing standards comparable or equivalent to the standards of ambulatory surgical centers e.g. procedure room size, corridor width, required minimum distance from hospital, transfer agreement with hospitals] is hereby repealed.

4)      Section XXX [any provision that includes onerous requirements on clinicians that perform abortions e.g. admitting privileges] is hereby repealed.

SECTION 9. REPEAL WAITING PERIODS AND MANDATORY BIASED COUNSELING

1)      Section XXX [any provision of law that requires a waiting period before an abortion is performed] is hereby repealed.

2)      Section XXX [any provision of law that necessitates multiple trips to a clinic for reasons other than medical necessity] is hereby repealed.

3)      Section XXX [any provision of law that necessitates an ultrasound or sonogram for reasons other than medical necessity] is hereby repealed.

SECTION 10. EVERY CHILD DESERVES A FAMILY

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

“Placement decision” means the decision to place, or to delay or deny the placement of, a child in a foster care or an adoptive home, and includes the decision of the agency or entity involved to seek the termination of birth parent rights or otherwise make a child legally available for adoptive placement.

(B) DISCRIMINATION PROHIBITED—An entity that receives state assistance or contracts with an entity that receives state assistance, and is involved in adoption or foster care placements shall not:

1)      Deny to any person the opportunity to become an adoptive or a foster parent on the basis of the sexual orientation, gender identity, or marital status of the person, or the sexual orientation or gender identity of the child involved;

2)      Delay or deny the placement of a child for adoption or into foster care on the basis of the sexual orientation, gender identity, or marital status of any prospective adoptive or foster parent, or the sexual orientation or gender identity of the child; or

3)      Make any other decision on the basis of the sexual orientation, gender identity, or marital status of the prospective adoptive or foster parent, or the sexual orientation or gender identity of the child involved.

(C) ENFORCEMENT

In addition to all other remedies, any individual who is aggrieved by an action in violation of this section may bring a lawsuit seeking relief in [insert court of appropriate jurisdiction].

SECTION 11. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.

SECTION 12. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 2016.

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