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Review and Analysis of the 2008 State Legislative Sessions

Denise Burke
AUL Vice President & Legal Director

i. Introduction


As we prepare for the fall elections and the run-up to the 2009 state legislative sessions, it is critical that we learn the lessons of 2008. This report analyzes the successes, defeats, and important legislative trends related to abortion, protection of unborn victims of violence, contraception, healthcare rights of conscience, biotechnologies, and the end-of-life.

ii. Abortion


While several states introduced abortion bans, the number of states considering complete or near-complete bans on abortion has not significantly increased since last year’s Gonzales v. Carhart decision.

Rather, what has increased is legislation designed to protect women from the negative consequences of abortion. Among these measures are comprehensive informed consent requirements, stronger parental involvement provisions, requirements that a woman be offered the opportunity to view an ultrasound before an abortion, and mandated minimum health and safety standards for abortion clinics.

In 2008, 45 states considered nearly 450 measures related to abortion, a 12% increase from 2007 activity levels. This is especially notable given that 5 states (including very pro-life Arkansas, North Dakota, and Texas and very legislatively-active Oregon) did not hold regular legislative sessions this year. Among recent pro-life victories were:

  • An omnibus measure in Oklahoma, requiring that a woman undergo an ultrasound prior to an abortion, regulating the provision of RU-486, and prohibiting coerced abortions.
  • New laws in Ohio, South Carolina, and South Dakota requiring that abortion providers offer a woman the opportunity to view an ultrasound prior to an abortion.
  • Legislatures in Colorado, Maryland, and Michigan limiting the use of taxpayer funding for abortions and abortion counseling.
  • Idaho lawmakers strengthening the state’s informed consent law and prohibiting coerced abortions.
  • Meaningful funding of abortion alternatives in Louisiana, Missouri, Oklahoma, and Pennsylvania.

Conversely, Arizona Governor Janet Napolitano vetoed a ban on partial-birth abortion and a measure requiring parental consent before a minor may obtain an abortion, while Kansas Governor Kathleen Sebelius, in the face of pending criminal charges against late-term abortionist George Tiller and on-going investigations into the practices of Planned Parenthood, vetoed measures strengthening requirements for abortion clinics to report suspected child sexual abuse and enhancing the ability of prosecutors to enforce the state’s late-term abortion law.

A comprehensive review of this year’s legislative activity shows that the most popular state abortion-related legislation included:

  • Abortion bans. These measures included bans on partial-birth abortions, post-viability abortions, and sex-selective abortions, as well as near-complete abortion bans that would take effect upon the reversal of Roe v. Wade.
  • Parental involvement for abortion. The states were equally divided in considering parental notice and more protective parental consent measures.
  • Informed consent and informed consent enhancements including ultrasound requirements, information on fetal pain, and prohibitions on coerced abortions.
  • Ultrasound requirements. At least 18 states considered requirements that women be offered the option to undergo and view an ultrasound prior to an abortion.
  • Limitations on state taxpayer funding for abortion. These limitations included measures limiting funding of elective abortions for Medicaid recipients, prohibiting the use of taxpayer funds for abortion counseling, and limiting the use of public facilities for the provision of abortions.

Similar measures are likely to be popular in 2009 along with legislation strengthening requirements for abortion clinics to report suspected child sexual abuse, providing taxpayer funding for abortion alternatives, and establishing minimum health and safety standards for abortion clinics.

While abortion advocates devoted the majority of their legislative efforts to opposing these common-sense measures, they also instigated attacks on the efforts of crisis pregnancy centers and sought to expand the availability of abortifacients including so-called “emergency contraception.” Moreover, acknowledging the dwindling numbers of physicians willing to perform abortions, they also introduced measures to allow nurses to perform abortions and to circumvent or limit the ability of individuals and institutions (including Catholic hospitals) to refuse to participate in abortions.

More critically, five states–Illinois, Minnesota, New Mexico, New York, and Rhode Island–introduced state versions of the federal Freedom of Choice Act, a radical attempt to enshrine abortion-on-demand into American law, to sweep aside existing laws that the majority of Americans support, and to prevent states from enacting similar protective measures in the future.

a. Abortion Laws (General):


1. Constitutional Amendments:

Mississippi, Tennessee, and West Virginia considered constitutional amendments either conferring “personhood” on the unborn under the state constitution or explicitly recognizing that the state constitution does not provide a “right to abortion.”

2. Statutory Redefinitions:

Tennessee considered measures to define the term “inception of human life” to mean “the moment of conception.”

West Virginia considered a measure providing that when any body part of an unborn child is outside the womb, the child is “born” and is considered a citizen of the state.

3. Medical Emergency Exception:

A small number of states including Kentucky introduced measures amending the definition of “medical emergency” in state abortion-related laws and/or requiring written certification as to the nature of a medical emergency invoked to excuse full compliance with informed consent, parental involvement, and other laws.

b. Abortion Bans:


1. Delayed enforcement laws:

Were considered in at least 8 states, including Tennessee and Virginia.

2. Partial-birth abortion:

At least 11 states considered bans on partial-birth abortion, including Alaska, Arizona, Kentucky, Michigan, Tennessee, Virginia, West Virginia, and Wisconsin.

Arizona Governor Janet Napolitano twice vetoed legislation banning partial-birth abortion. After the first veto in April, legislators amended the measure to reduce the potential penalties and to permit a physician charged with violating the ban to seek the opinion of the Arizona medical board to determine the medical necessity of the questioned procedure. However, Governor Napolitano vetoed that measure in June.

Similarly, Michigan Governor Jennifer Granholm vetoed a measure allowing for civil actions against physicians who perform partial-birth abortions (except in cases of life endangerment).

3. Post-viability abortions:

At least 8 states including Florida, Georgia, Kansas, Mississippi, New Hampshire, New Jersey, South Dakota, and Washington considered limitations on post-viability abortions.

4. Ban on Sex-Selective Abortions:

Mississippi and West Virginia considered bans on abortions performed for sex selection.

c. Abortion Alternatives:


Several states considered measures providing meaningful funding to organizations providing alternatives to abortion. This is primarily accomplished either through direct funding or the issuance of “Choose Life” license plates.

1. Direct Funding:

At least 6 states including Louisiana, Missouri, Oklahoma, Pennsylvania, and Tennessee considered measures providing direct funding to pregnancy resource centers and others providing abortion alternatives.

Louisiana allocated $1 million to “alternative-to-abortion services.”

Missouri allocated funds to provide alternatives to abortion for women at or below 200% of the federal poverty level. The program will offer a range of services to women during pregnancy and for one year following birth. Program funding cannot be used for services related to family planning or abortion and will not be provided to organizations that offer abortions or abortion referrals.

Oklahoma enacted a measure earmarking Department of Health funds for abortion alternatives and authorizing the Department of Health to provide $40,000 to an “alternatives to abortion” fund.

Pennsylvania enacted two measures allocating $4.7 million to fund abortion alternatives programs and prohibiting nonprofit organizations receiving funding from performing abortion services or providing abortion counseling. Further, organizations receiving funding must maintain a strict separation from any organization providing abortion-related services.

2. “Choose Life” License Plates:

At least 4 states considered measures to offer the plate, including Florida, Michigan, Missouri, and West Virginia.

3. Other Alternative Funding:

Tennessee considered measures creating a “tax-me-more” fund to receive voluntary contributions earmarked for “abortion prevention.”

d. Abortifacients:


At least 6 states including Kentucky, Mississippi, Missouri, and Oklahoma considered measures regulating the administration and provision of abortifacients (primarily, RU-486).

The Oklahoma legislature overrode the Governor’s veto and enacted a measure requiring that the provision of RU-486 comply with the FDA’s protocol for the drug and mandating the reporting of complications associated with the drug. The measure also limits the provision of RU-486 to physicians.

In a unique move, the Missouri House of Representatives passed a measure (later rejected by the Senate) to classify RU-486 as a Schedule I controlled substance, preventing physicians from prescribing it and pharmacists from dispensing it.

e. Abortion Clinic Regulations:


1. General:

At least 16 states including Alaska, Florida, Georgia, Indiana, Maryland, Minnesota, Oklahoma, Virginia, and West Virginia considered measures establishing minimum health and safety standards for abortion clinics.

Virginia sought to regulate facilities performing 25 or more first-trimester abortions per year as “ambulatory surgical centers.”

2. Record-Keeping:

At least 5 states including Kansas, Michigan, Minnesota, Oklahoma, and South Carolina considered measures related to facility and patient record-keeping.

f. Freedom of Choice Act (FOCA):


Five states–Illinois, Minnesota, New Mexico, New York, and Rhode Island–introduced state versions of the federal Freedom of Choice Act or FOCA, a radical attempt to enshrine abortion-on-demand into American law, to sweep aside existing laws that the majority of Americans support, and to prevent states from enacting similar protective measures in the future.

g. Funding Limitations:


1. Taxpayer Funding of Abortion:

At least 14 states including Alabama, Colorado, Georgia, Iowa, Maryland, Michigan, Minnesota, Missouri, Rhode Island, Virginia, and West Virginia considered legislation related to public funding of abortions.

As part of the state’s budget bill, Colorado again prohibited state family planning funds from going to organizations that provide abortion services.

Maryland reenacted existing limitations on abortion funding. Public funding is only available in Maryland in case of life endangerment, rape, incest, severe fetal abnormality, or when the women’s physical and mental health is at “grave risk.”

In Michigan, the state’s budget includes a prohibition on the use of state family planning funds for abortion services, including counseling and referrals.

2. Use of State Facilities:

At least 2 states including Georgia and Rhode Island considered measures to limit the use of public facilities such as hospitals for elective abortions.

h. Informed Consent and Informed Consent Enhancements:


1. General:

At least 20 states including Alaska, Colorado, Connecticut, Idaho, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Missouri, New Hampshire, New York, Oklahoma, Rhode Island, South Carolina, Tennessee, Washington, West Virginia, and Wisconsin considered legislation requiring informed consent and/or a reflection period prior to an abortion or strengthening existing requirements.

2. Coercion:

At least 7 states including Alaska (for minors), Idaho, Kansas, Missouri, Ohio, Rhode Island, Virginia, and Wyoming considered measure to prohibit coerced abortions.

Idaho enacted a measure prohibiting anyone from coercing a woman into having an abortion.

Part of an omnibus measure, Oklahoma now requires that abortion clinic personnel have a private session with a minor to ensure that her decision to seek an abortion is not the result of coercion and requires clinics to post notices informing patients that it is illegal to coerce a woman into an abortion.

Interestingly, Ohio considered a measure requiring abortion facilities to post a sign stating that it is a crime to cause or attempt to cause physical harm to a family or household member who is pregnant.

3. Fetal Pain:

At least 8 states including California, Indiana, Missouri, Virginia, and West Virginia considered measures requiring women considering abortion to be counseled about fetal pain.

4. Ultrasounds:

At least 18 states including Colorado, Florida, Kansas, Kentucky, Missouri, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Virginia, and West Virginia considered measures related to the use of an ultrasound prior to an abortion.

Ohio enacted a measure requiring abortion providers to offer a woman the opportunity to view an ultrasound and to obtain a copy of the image when an ultrasound is performed as part of the preparation for an abortion.

A new Oklahoma law requires that every woman undergo an ultrasound (abdominal or transvaginal depending on which method would produce the better image) at least one hour before an abortion may be performed. The person performing the ultrasound is required to describe the image to the woman, including whether limbs or internal organs are present and viewable. While the woman may “avert” her eyes, the law requires the image to be displayed so that she can see it.

South Carolina and South Dakota enacted measures requiring that a woman be offered an ultrasound and the opportunity to view the image prior to undergoing an abortion.

5. Spousal Notification:

West Virginia considered a measure requiring spousal notification for abortion.

i. Insurance Coverage for Abortion:


At least 5 states including California and North Carolina considered measures related to insurance coverage for abortion.

j. Parental Involvement:


1. Parental consent:

At least 12 states including Alaska, Arizona, Michigan, Mississippi, New Hampshire, Rhode Island, Tennessee, Virginia, and West Virginia considered measures requiring parental consent for abortion.

In Arizona, the Governor vetoed a bill that would have amended the state’s parental consent requirement, providing standards for judges to use when deciding whether to grant a minor’s request to waive the state’s parental consent requirement.

2. Parental notice:

At least 12 states including Alaska, Florida, Kansas, Massachusetts, New Hampshire, and West Virginia considered measures.

In Kansas, the Governor vetoed a measure that would have strengthened the state’s existing parental notification law: (1) requiring that any adult accompanying the minor show identification, declare in writing their relationship to the minor, and identify the father of the unborn child; (2) requiring the minor to show some form of picture identification proving identity and place of residence; and (3) if the minor chooses to seek a judicial waiver of parental notification, prohibiting any employee of an abortion provider or clinic from assisting her with the requisite court filings and proceedings.

k. Provider Requirements:


1. General:

At least 5 states including Arizona, Mississippi, Missouri, Tennessee, and Virginia considered measures imposing requirement as to who can perform surgical and/or medical abortions.

Arizona considered a measure to explicitly prohibit nurses from performing abortions.

2. Admitting Privileges:

At least 4 states including Indiana considered measures requiring abortion providers to have admitting privileges at a local hospital.

l. Reporting Requirements:


1. General:

At least 12 states including Kansas, Mississippi, Missouri, South Dakota, and West Virginia considered measures requiring the reporting of specified statistical information on abortions to state agencies.

As part of its new ultrasound requirement, South Dakota also required that abortion providers report the number of women who undergo an abortion after choosing to view an ultrasound.

Kansas Governor Kathleen Sebelius vetoed a measure that would have permitted injunctive relief for either a completed or about-to-be-performed illegal late-term abortion and would have added certain prosecutors (in addition to the Attorney General) to prosecute violations of existing prohibitions on late-term abortions.

2. Sexual Abuse Reporting:

At least 6 states including Kansas, Mississippi, Utah, and Virginia considered measures related to child sexual abuse and sexual abuse reporting laws.

Mississippi introduced AUL-developed legislation, The Child Protection Act, that sought to (1) require specified individuals to report suspected child sexual abuse and removed discretion in reporting, eliminating the need for reporters to conduct any investigation; (2) require a physician performing an abortion on a minor younger than 14 to provide a tissue sample to the state bureau of investigation or crime laboratory for use in possible legal action; and (3) created a civil cause of action against anyone who willfully circumvents the state’s parental involvement law by taking a minor out-of-state for an abortion.

Utah and Virginia enacted laws amending statutory rape laws.

3. Minors & Abortion:

At least 6 states including Alaska and Florida considered measures imposing additional reporting requirements for abortions performed on minors. The information sought included the number of abortions performed on minors, complications, and judicial waivers of parental involvement requirements.

m. Legislative Declarations:


New Mexico considered multiple legislative declarations condemning violence against abortion clinics.

iii. Prenatal Protection and Protection for Newly-Born


In 2008, legislatures continued, in significant numbers, to consider measures seeking to protect unborn child outside the context of abortion. These measures sought to protect both women and their unborn and newly-born children and to provide a variety of both criminal and civil remedies.

a. Protection of Unborn Victims of Violence:


At least 18 states including Alabama, California, Florida, Georgia, Hawaii, Illinois, Massachusetts, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and West Virginia considered measures providing protection to unborn victims of violence.

b. One Victim/Enhanced Penalty Laws:


Hawaii considered a measure making it a crime to assault a pregnant woman, but not recognizing the unborn child as a separate crime victim.

c. Use of Deadly Force to Protect the Unborn:


Oklahoma, Virginia, and West Virginia considered measures amending their penal codes to permit a woman to use deadly force to protect her unborn child.

d. Substance Abuse by Pregnant Women:


At least 26 states including Alabama, Arizona, Florida, Georgia, Illinois, Kentucky, Missouri, Utah, and Virginia considered measures to assist women and children impacted by prenatal drug and alcohol use.

Kentucky enacted a measure allocating $2 million over two years for substance abuse prevention and treatment of pregnant women.

Utah enacted a measure requiring substance abuse treatment programs receiving public funds to give priority admission to pregnant women and teenagers.

Virginia Governor Tim Kaine signed into law a measure that added emergency services personnel to a list of required reporters of suspected child abuse including cases of in utero exposure to controlled substances.

e. Fetal Death Certificates:


At least 8 states including New Hampshire, New York, Ohio, and Pennsylvania considered measures providing for fetal death and certificates of stillbirth.

New Hampshire established stillbirth certificates.

Ohio enacted the Grieving Parents Act, requiring a fetal death certificate and burial for the death of an unborn child.

f. Infant Abandonment:


At least 13 states including Alaska, California, Maryland, Nebraska, New Hampshire, Vermont, and Washington considered measures to define parameters under which an unharmed, healthy infant may be safely relinquished to medical or state authorities without fear of legal consequences.

Alaska Governor Sarah Palin signed into law a measure that provides immunity for a parent who leaves an unharmed infant no more than 21 days old with a police officer, medical personnel, hospital employee, and emergency services personnel. The infant can also be left with any person the parent feels will act in the infant’s best interest. Although the person receiving the newborn is required to ask about the infant’s identity and medical information, the parent is not required to provide the information.

Maryland enacted a measure extending the age limit at which an unharmed infant can be legally relinquished from 3 to 10 days.

Nebraska enacted a measure prohibiting the criminal prosecution of someone who relinquishes a child to an on-duty hospital employee.

Vermont enacted a measure permitting a person or facility receiving an infant to not reveal the identity of the person relinquishing the child unless there is suspected abuse.

g. Born-Alive Infant Protection:


West Virginia considered legislation protecting infants who survive an abortion and requiring that they be given appropriate medical care.

h. Wrongful Death:

At least 2 states including Indiana and New York considered measures providing for a civil wrongful death action for an unborn child.

iv. Contraception

Nearly a quarter of the states considered legislation expanding coverage for and availability of contraceptives including so-called “emergency contraception.”

a. Contraceptive Coverage:


At least 12 states considered 25 measures requiring insurance coverage for contraceptives including Hawaii, Illinois, Indiana, Louisiana, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, and Washington.

Indiana enacted a measure creating a state health insurance program covering contraceptives.

b. “Emergency Contraceptives”/Plan B:


1. Emergency Room Mandates:
At least 13 states including Colorado, Hawaii, Michigan, Minnesota, Pennsylvania, West Virginia, and Wisconsin considered measures requiring emergency rooms to dispense Plan B on request and/or to provide information about emergency contraceptives to victims of sexual assault.

Minnesota enacted a measure requiring hospitals to provide emergency contraception to sexual assault victims, but providing an exemption if the victim has a positive pregnancy test.

Wisconsin enacted a measure requiring that a sexual assault victim receive “medically accurate and unbiased information” on emergency contraception, as well as the medication upon request from the hospital treating her injuries. The hospital is not required to provide the medication if the woman has a positive pregnancy test.

2. Collaborative Practice Agreements:

New York considered a measure that would allow a registered nurse or pharmacist to dispense emergency contraception under a collaborative practice agreement with a physician.

Further, no states introduced or considered measures limiting or restricting access to emergency contraceptives.

v. Healthcare Rights of Conscience

In 2008, approximately 70 measures related to healthcare rights of conscience were considered. This level of activity is consistent with what we have seen over the past few years. However, for the first time in recent years, bills seeking to compel conscience and to force providers to act in opposition to their personal beliefs outpaced protective measures. Nearly 60% of the legislation considered in 2008 was compulsion measures. Most of these compulsion measures were directed at individual pharmacists and pharmacies.

a. Comprehensive ROC Protection:


At least 9 states including Alabama, Hawaii, Illinois, Michigan, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Vermont considered legislation providing comprehensive protection for healthcare rights of conscience.

Over the governor’s veto, Oklahoma enacted a law allowing individual healthcare providers and individual medical facilities to decline to participate in abortions, destructive biotechnologies, and assisted suicide based on moral or religious beliefs. Specifically, medical institutions may refuse to provide personnel or facilities for abortion services, except in the case of a medical emergency.

b. Abortion-Related Protection:


At least 9 states including Illinois, Nevada, New York, North Carolina, Oklahoma, Rhode Island, and West Virginia considered measures to protect healthcare providers, facilities, and/or payers who conscientiously object to participating in abortion.

At least eight states including Alabama, Illinois, Nevada, Rhode Island, and West Virginia considered measures to allow individual medical facilities to refuse to allow abortions in their facilities. Further, at least 5 states including Alabama, Hawaii, and South Carolina considered legislation allowing insurers to decline to cover elective abortions.

Conversely, legislators in Colorado considered measures allowing the state government to take administrative control of hospitals that fail to provide such “essential” services as elective abortions, contraception, and sterilization.

c. Pharmacist-Only Protection:


At least 11 states including Indiana, Missouri, South Carolina, and West Virginia considered legislation to protect pharmacists and pharmacies that decline to stock and to dispense abortifacient drugs, including emergency contraceptives.

d. Compulsion Bills:


At least 12 states including Florida, Indiana, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, and West Virginia considered measures to compel pharmacists and pharmacies to violate their consciences and dispense emergency contraceptives.

vi. Bioethics and Biotechnologies

Legislators in 28 states considered more than 80 measures related to biotechnologies. This level of activity represents a continuing and significant downward trend in legislation concerning these critical and emerging areas. The number of legislative measures related to biotechnologies has decreased by more than 80% since 2005 when more than 500 measures were introduced and considered.

a. Cloning:


At least 9 states including Alabama, Arizona, Connecticut, Illinois, Iowa, Louisiana, Nebraska, Ohio, and West Virginia considered measures related to human cloning.

Connecticut enacted a measure that appears to ban only so-called “reproductive cloning,” but not all forms of human cloning.

b. Destructive Embryo Research:


At least 8 states including Connecticut, Florida, Illinois, Minnesota, Nebraska, New Jersey, New Mexico, and Oklahoma considered measures banning or explicitly permitting destructive embryo research.

Nebraska enacted a law prohibiting state institutions from engaging in embryonic stem-cell research.

Oklahoma enacted a law allowing stem-cell research only if the research is performed “safely and ethically” using either adult stem cells or embryonic stem-cell lines created prior to August 2001.

Oklahoma lawmakers also defeated an attempt to place the Oklahoma Stem Cell Research and Cures Initiative, a voter initiative permitting the creation of human embryos for destructive research, on the fall ballot in the state.

c. Ethical Forms of Research:


At least 5 states, Colorado, Illinois, Michigan, Minnesota, and New Jersey considered measures promoting ethical forms of stem-cell research, including the use of umbilical cord blood and adult stem cells.

Colorado enacted a measure creating the Adult Stem Cells Cure Fund. The measure set standards for the collection of umbilical cord blood for those hospitals participating in donation programs. Further, under the measure, voluntary contribution may be designated on state income tax forms and an account for the proceeds has been created in the state treasury.

d. State Funding of Biotechnology:


A small number of states including Louisiana, Nebraska, and New Jersey considered measures prohibiting taxpayer funding of destructive embryo research.

Louisiana enacted a ban on taxpayer funding of human cloning and destructive embryo research. The measure explicitly permits the use of federal funds for research that complies with the terms of President Bush’s August 2001 Executive Order (permitting research on then-existing embryonic stem-cell lines).

Nebraska enacted a measure prohibiting state funding of human cloning and establishing a stem-cell research fund to support non-embryonic stem cell research conducted by institutions in Nebraska.

Meanwhile, several states including California, Florida, Illinois, and Minnesota considered measures directing state taxpayer funding for destructive embryo research.

Minnesota Governor Tim Pawlenty vetoed a measure providing taxpayer funding for destructive embryo research and research on cells derived from human cloning.

e. Chimeras:


Louisiana considered a measure to prohibit the creation of and research on human-animal hybrids.

f. Assisted Reproductive Technology:


At least 14 states considered measures related to assisted reproductive technology (ART) and related procedures, including in vitro fertilization (IVF) and the use of surrogates.

At least 9 states including Georgia, Iowa, Maryland, Massachusetts, Mississippi, New Jersey, Rhode Island, and Tennessee considered measures to require insurance coverage for ART.

At least five states considered measures to legally establish parentage in cases involving ART, including Alabama, California, Minnesota, Mississippi, and New Hampshire.

Alabama enacted a measure related to paternity, genetic testing, and “children of assisted reproduction.”

At least 4 states–California, Connecticut, New York, and New Jersey–considered legislation to regulate the ART industry. These measures concerned informed consent for IVF and the disposition of embryos.

Connecticut enacted a measure requiring, in part, that a person undergoing IVF treatments be informed about options with regard to the disposition of unused embryos (including donation to another person or for research).

Minnesota considered a measure regulating surrogacy agreements.

g. Embryo Adoption:


Indiana considered measures to permit the adoption of “abandoned” embryos.

h. Human Egg Donation:


New Jersey considered the Ovarian Health Protection Act, prohibiting the procurement or use of human eggs for research and experimentation.

vii. End of Life


In 2008, approximately 70 measures related to end-of-life issues were considered in 26 states. This reflects a slight decrease in activity in this area, but is generally consistent with what we have seen over the past 3 years.

a. Assisted Suicide & Euthanasia:


Making use of titles such as Death with Dignity and Compassionate Choices, at least 4 states including Arizona, California, Washington, and Wisconsin considered measures to legalize physician-assisted suicide.

California enacted a measure that, while not explicitly legalizing assisted suicide, requires physicians to counsel their patients on how to end their lives. Moreover, if patients elect to starve and/or dehydrate themselves to death, the physician must, if requested, provide material assistance by prescribing sedatives.

b. Advance Directives, Living Wills, Healthcare Powers of Attorney & Related Documents:


The vast majority of end-of-life measures considered in 2008 dealt, in varying ways, with advanced directives, “do not resuscitate” orders, and the proper appointment of guardians and healthcare agents. In 2008, 10 states enacted new laws dealing with advanced directives.

Arizona enacted a measure providing that a surrogate who is not the patient’s agent or guardian cannot make decisions to withdraw the artificial administration of food or hydration and providing means to secure a court order to ensure compliance with the new law.

California enacted a measure redefining requirements for “Do Not Resuscitate” orders.

Delaware enacted a measure enabling an agent, surrogate, or guardian of a patient to have full authority and standing under the Health Insurance Portability and Accountability Act (HIPPA) to act as the personal representative under the Act, even if an advance healthcare directive, surrogate confirmation, or guardianship order does not so expressly provide.

Florida enacted a measure delineating who may serve as a guardian-advocate for a developmentally-disabled person and defining rights and responsibilities for that advocate.

Kansas enacted legislation regarding appointments of guardians and conservators for impaired adults, exempting treatment “by prayer,” and providing alternatives for various healthcare powers of attorney.

Maryland supplemented the existing Healthcare Decisions Act by allowing an electronic signature on applicable documents.

New York enacted a measure authorizing a simplified advance healthcare directive form for persons receiving mental retardation and developmental disabilities services.

Further, New York enacted a second measure authorizing a surrogate decision-making committee to act as guardian of a mentally retarded person who otherwise has no other person to act as a guardian for the purpose of making a decision to withhold or withdraw life-sustaining treatment.

Utah amended the Advance Health Care Directive Act to provide a standard to be used by a surrogate in making a healthcare decision on behalf of a person who no longer has capacity to make his/her own health care decisions; to replace the existing “physician order for life sustaining treatment” form with a “life with dignity order;” to establish procedures and requirements relating to the order; and to describe who may witness the making or revocation of an advance healthcare directive.

Vermont enacted an omnibus measure providing standards for appointment of agents for impaired adults, “Do Not Resuscitate” orders, informed consent for appointment of healthcare agents, and background checks for guardians and agents.

Virginia enacted a law requiring the Department of Health to create and maintain a secure online central registry for advance healthcare directives that is accessible to licensed healthcare providers through a site maintained by the Department of Health.

c. Pain Management:


At least 5 states including Illinois, Kentucky, Massachusetts, New York, and Vermont considered measures to promote proper pain management for all patients, especially the terminally-ill. Some measures encouraged training in pain management, while others sought to create a study task force, enact a patient bill of rights to include the right to effective pain management, or impose annual reporting requirements.

Vermont enacted a measure requiring the state Department of Health to provide an annual report on end-of-life care and pain management.

d. Palliative Care:


At least 4 states including Connecticut, New Jersey, New York, and Vermont consider legislation to encourage training in and funding of palliative care.

e. Preventing Starvation and Dehydration:


Only one state–Mississippi–considered a measure establishing, in the absence of proper documentation to the contrary, a rebuttable presumption in favor of continued artificial food and hydration.