The effects of mandatory delay laws on abortion patients and providers. (SPECIAL REPORT).

Since the Supreme Court ruled in 1973 in Roe v. Wade that a woman has the right, based on her constitutional right to privacy, to have an abortion, activists and legislators opposed to abortion have sought other means of restricting access to abortion. One common strategy has been the introduction of legislation requiring a woman to delay her abortion for a certain number of hours or days after receiving certain state-mandated information and being offered information on fetal development and lists of agencies that provide prenatal care or other services for women who decide to carry their pregnancies to term. Those who sponsor such legislation say it is intended to assure that women seeking an abortion are adequately informed and have time to consider their decision. Those who oppose the legislation contend that it is designed to create barriers to abortion and to persuade women to continue their pregnancies, pointing out that portions of the mandated information are already provided as a matter of course.

As of August 1994, such legislation had been passed and signed into law in 15 states, although it was being enforced in only seven--Kansas, Mississippi, Nebraska, North Dakota, Ohio, Pennsylvania and Utah. In three states--Kentucky, Massachusetts and South Dakota (*) -- enforcement of a mandatory delay requirement has been stayed or enjoined by a federal court, and in two states--Michigan and Tennessee--such a requirement has been enjoined by a state court. In Delaware, Idaho and Indiana, mandatory delay legislation is on the books but is not currently being enforced. In addition to the legislation in these 15 states, a provision for a one-hour delay with mandatory counseling was passed in mid July in South Carolina. At the time this report was written, it had not yet been signed by the governor.

In states in which mandatory delays are being enforced, the waiting period required is generally 24 hours; Kansas, the exception, requires an eight-hour delay. The information that must be given to a woman seeking an abortion, who may provide the information and how it may be provided vary from state to state. Most states require that a woman be told the probable gestational age of the fetus and the medical risks of abortion and childbirth. In almost all states, she must also be informed that the father is liable for child support and that medical assistance benefits may be available for prenatal care, childbirth and neonatal care. In some cases, this information must be provided by a physician. In Mississippi, the law has been interpreted as requiring the woman to make two visits to the clinic, once for statemandated "counseling" and once for the abortion. In the other states, however, only one visit may be needed because the laws specify or have been interpreted to mean that the mandated information may be provided by mail, by telephone or, in some cases, by other electronic means. (+)

In addition, most states require abortion providers to furnish or make available to their patients (and, in some cases, to pay for) government-produced material on fetal development and lists of agencies that arrange adoptions or provide prenatal care or other services for women who decide to carry their pregnancy to term. The material on fetal development often depicts a fetus at two-week gestational intervals; it may also, according to the particular state law, give information on fetal viability and describe the "probable anatomical and physiological characteristics of the unborn child," such as brain and heart function and "the presence of external members and internal organs during the applicable stages of development." Some states require that women be told of "possible detrimental psychological effects of abortion" and "the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility." Although two states (Michigan and Ohio) require that women receive this information, no state req uires that she actually review it. Many, however, require her to certify that she was informed of its existence and her right to review it, and that it was provided if requested.

Although these laws are commonly promoted as efforts to protect women by giving them the time and information needed to make an informed decision, they can create difficulties for women and the clinics that serve them. This report examines how the laws have affected providers and women seeking abortions in three states. In Ohio and Pennsylvania, enforcement of mandatory delay laws did not begin until March 1994, 50 it is too early to determine the impact of these laws on women's access to abortion. However, information provided by administrators of two clinics shows the ways in which the laws have affected providers. In Mississippi, evidence of the effect of the mandatory delay law on women's access to abortion is available because the law has been enforced since August 1992. This report presents results of an analysis of abortion trends in Mississippi before and after enforcement of the law began.

Ohio

Provisions of the Law