Do Existing State Abortion Laws Apply to Mifepristone (RU-486)?

February 21, 2000

This is a checklist of general categories of state abortion restrictions that apply or may apply to the provision of early medical abortion, including abortion by the use of mifepristone. Not every restriction exists in every state. Not every restriction applies to early medical abortion. This checklist should help guide advocates, abortion providers, and their lawyers in reviewing their state's laws to determine which restrictions apply to the provision of early medical abortion in that state.

State Restrictions That Generally Apply to Early Medical Abortion

Biased counseling laws. Several states have abortion-specific "informed consent" laws that require abortion providers to give patients state-prepared materials, to recite state-scripted information, or both, usually at least 24 hours before the abortion may be performed. Such laws generally apply to early medical abortion because of the broad definitions of abortion they incorporate. Providers in states with biased counseling laws that impose a waiting period should be careful to consider the delay caused by the waiting period when determining a patient's eligibility for medical abortion based on the duration of pregnancy. In general, mifepristone should not be administered until the legal prerequisites imposed by the biased counseling law have been met. For a list of state biased counseling laws that impose a waiting period, see Table I. For a list of state laws that mandate counseling without a waiting period, see Table II.

Parental involvement laws. State laws requiring the consent or notification of one or both parents before a minor can obtain an abortion generally apply to minors seeking a medical abortion. Again, providers must account for the waiting period attached to many parental involvement laws when determining a minor's eligibility for early medical abortion based on gestation. In addition, most states provide minors the option to petition a court for a waiver of the parental involvement requirement through a "judicial bypass process." This process can take several days or more. Providers must account for this delay, if applicable, when determining eligibility. In general, the administration of mifepristone should not occur until the legal prerequisites under the parental involvement law have been fulfilled. For a list of state parental notification and consent laws, see Table III.

Reporting requirements. Virtually every state requires abortion providers to report certain information periodically to the state or to keep records of certain information for possible state inspection. The most prevalent reporting requirements compel an abortion provider to report each abortion that he or she performs. State abortion reporting requirements generally apply to providers of medical abortions.

State Restrictions That May Apply to Early Medical Abortion

Physician-only laws. Most states have laws that prohibit anyone other than a licensed physician from performing an abortion. Not all physician-only laws prevent nonphysician practitioners from performing medical abortions, however. In Hawaii and Rhode Island, for example, physician-only laws apply only to surgical abortion. Moreover, when construed in light of the standard of care, most physician-only laws should permit a physician to direct a qualified agent to administer mifepristone or misoprostol (the second drug in the mifepristone regimen) to a particular patient, or to perform other aspects of the medical abortion protocol. Finally, some state practice acts, which grant specified licensed nonphysician health care providers authority to dispense certain drugs, may take precedence over conflicting physician-only laws or regulations with respect to medical abortion. For a list of states with physician-only laws that are not expressly limited to surgical abortion, see Table IV.

Laws governing dispensing authority. Many states grant certain nonphysicians authority to dispense certain medications. The states vary in the degree of independence they afford to such nonphysician providers. In addition, nonphysicians whose authority to dispense medication under state law is governed by a formulary must ensure that mifepristone and misoprostol are among the types of drugs they are permitted to dispense. Even where state law permits nonphysicians to dispense these medications, physician-only laws may directly conflict. Where there is a conflict between such a state practice act and a physician-only law, affected providers should seek guidance from attorneys expert in their state laws.

State Restrictions That Likely Do Not Apply to Early Medical Abortion

The laws discussed in this section may be written so broadly as to encompass mifepristone abortions, but were clearly written with surgical abortions in mind (or, at least, abortions in which the patient expels the fetal tissue at a medical facility). If applied instead to abortions in which the patient aborts at home, these laws are not only unnecessary but irrational and excessively burdensome. Accordingly, they may be interpreted by state authorities as not applicable to such abortions or may be susceptible to court challenges. We urge providers in states with such laws to consult attorneys to determine whether they must comply.

Targeted regulation of abortion providers ("TRAP" laws). Many states require facilities where abortions are performed to adhere to burdensome regulations that are not imposed on other physicians' offices or outpatient clinics with comparable medical and surgical practices. Some of these regulations apply to facilities where first-trimester abortions are provided. If the laws do not employ a narrow definition of abortion that applies to surgical abortions only, they may theoretically apply to providers of mifepristone. Whether TRAP laws apply to providers of mifepristone often also depends on whether other state-specific criteria are met. For example, many regulations apply only to providers who perform a certain number of abortions per month or who practice in certain types of medical facilities. Table V lists TRAP laws that apply in the first trimester and that are not expressly limited to surgical abortion. The table does not account for other state-specific variations in how or to whom the laws apply.

Laws governing the examination of fetal tissue. Many states have laws that require the examination of fetal tissue following an abortion. Some laws require a pathologist's report, while others require the attending physician to examine the tissue. Some of these laws may technically apply to medical abortion because of broad definitions of the term "fetus." For a list of states with such laws, see Table VI.* In a few of these states, examination laws may be read to exclude medical abortion because of the way such abortions are performed. For example, if the statute requires the examination of "removed" fetal tissue, the statute may not apply to medical abortions because no fetal tissue is "removed" during the procedure. The applicability of fetal tissue examination laws may also depend on the type of medical facility and number of abortions performed there.

Laws governing the disposal of fetal tissue. Some states regulate how fetal tissue may be disposed of after an abortion. Depending on the specific wording of the statute, such disposal regulations may appear to apply to fetal tissue expelled in a medical abortion. For a list of states with such laws, see Table VII.* Some of these laws may apply to medical abortions only if the woman expels the fetal tissue at a medical facility rather than at home. Many of the disposal laws do not appear to pose unreasonable burdens in the medical abortion context (e.g., they permit a doctor to instruct a patient to flush the products of conception down the toilet).

Other Legal Issues Relevant to Early Medical Abortion

Public funding of medical abortion. Whether medical abortions are covered under government-funded programs depends on the scope of the state's abortion coverage generally. The federal Medicaid program currently funds abortions only in cases of rape or incest, or when a pregnant woman's life is endangered by a physical condition. All states must provide at least this level of funding for their Medicaid patients. State policies in Mississippi and South Dakota are in violation of federal law because they cover abortion only in cases of life endangerment. Some states also cover abortions in cases of fetal impairment, pregnancies that threaten "severe" health problems, or both. Several states provide even broader coverage, funding abortions for low-income women on the same or similar terms as other pregnancy-related and general health services. Table VIII lists states that provide a broader level of coverage than the federally mandated minimum.

* States may have examination or disposal requirements, applicable to human tissue generally, with which medical abortion providers must comply. Tables VI and VII, however, list only state laws specifically regulating the handling of fetal tissue.

Table I. Biased Counseling Laws With Waiting Period

Idaho (Idaho Code §§ 18-604(4), 18-609)

Indiana (Ind Code Ann §§ 16-34-2-1, 16-34-2-1.1, 16-18-2-69)

Kansas (Kan Stat Ann §§ 65-6701, 65-6708 to -6715)

Kentucky (KY Rev Stat Ann § 311.725)^*

Louisiana (La Rev Stat Ann § 40:1299.35.6)

Michigan (Mich Comp Laws §§ 333.17014, 333.17015)

Mississippi (Miss Code Ann §§ 41-41-33, -35)

Nebraska (Neb Rev Stat §§ 28-327, 327.01)

North Dakota (ND Cent Code § 14-02.1-02, -02.1, -03(1))

Ohio (Ohio Rev Code Ann § 2317.56)

Pennsylvania (Pa Stat Ann tit 18, §§ 3205, 3208)

South Carolina (SC Code Ann §§44-41-310 to -380, 44-41-30)

South Dakota (SD Codified Laws §§ 34-23A-10.1 to -10.3, -22)

Utah (Utah Code Ann §§ 76-7-305, -305.5)

Wisconsin (Wis Stat Ann § 253.10)

* A court has ruled that this law is constitutional and has indicated that it anticipates lifting a stay of enforcement in early 2001.

Table II. Biased Counseling Laws (No Waiting Period)

Alabama (Ala Admin Code r 420-5-1-.03(1)(f))

Alaska (Alaska Admin Code tit 12, § 40.070)

California (Cal Code Regs tit 22, § 750-40)

Connecticut (Conn Gen Stat § 19a-116; Conn Agencies Regs § 19a-116-1(c))

Delaware (Del tit 24 § 1794)

Maine (Me Rev Stat Ann tit 22, § 1599-A)

Minnesota (Minn Stat Ann § 145.412(sub. 1)(4))

Nevada (Nev Rev Stat Ann § 442.252)

Rhode Island (RI Gen Laws § 23-4.7-2 to -4.7-5)

Virginia (Va Code Ann § 18.2-76)

Table III. Parental Involvement Laws

Alabama (Ala Code §§ 26-21-1 to -8)

Arkansas (Ark Code Ann §§ 20-16-801 to -808)

Delaware (Del Code Ann tit 24, §§ 1780 - 1789B)

Georgia (Ga Code Ann §§ 15-11-110 to -118)

Idaho (Idaho Code § 18-609(6))

Indiana (Ind Code Ann § 16-34-2-4)

Iowa (Iowa Code Ann §§ 135L.1-.3, .6-.8)

Kansas (Kan Stat Ann §§ 65-6701(f), -6704, -6705)

Kentucky (Ky Rev Stat Ann § 311.732)

Louisiana (La Rev Stat Ann § 40:1299.35.5)

Maine (Me Rev Stat Ann tit 22, § 1597-A)

Maryland (Md Code Ann Health-Gen I §20-103)

Massachusetts (Mass Gen Laws Ann ch 112, § 12S)^*

Michigan (Mich Comp Laws §§ 722.901 to .908)

Minnesota (Minn Stat Ann §§ 144.343, 645.451(sub 2))

Mississippi (Miss Code Ann §§ 41-41-51 to -55)

Missouri (Mo Ann Stat § 188.028)

Nebraska (Neb Rev Stat §§ 71-6901 to -6909)

North Carolina (NC Gen Stat §§ 90-21.6 to -21.10)

North Dakota (ND Cent Code § 14-02.1-03.1)

Ohio (Ohio Rev Code Ann §§ 2919.12, 2919.121, 2919.122, 2151.85, 2505.073)

Pennsylvania (Pa Stat Ann tit 18, § 3206)

Rhode Island (RI Gen Laws § 23-4.7-6)

South Carolina (SC Code Ann §§ 44-41-30 to -37, 44-41-10(m), (n))

South Dakota (SD Codified Laws §§ 34-23A-7, -7.1, -7.21, -7-1, 10.2, -22, 26-1-1)

Tennessee (Tenn Code Ann §§ 37-10-301 to -307)

Texas (Tx Fam Code Ann §§ 33.001 et seq, 101.003(a))

Utah (Utah Code Ann § 76-7-304(2))

Virginia (Va Code Ann §§ 16.1-241(V), 16.1-228)

West Virginia (W Va Code §§ 16-2F-1 to -9)

Wisconsin (Wis Stat Ann §§ 253.10, 48.02(2), 48.375)

Wyoming (Wyo Stat Ann § 35-6-101(a)(x), -118)

* This statute requires two-parent consent, but a court has issued an order that the law be enforced as requiring the consent of one parent.

Table IV. Physician-Only Laws

Alabama (Ala Admin Code r 420-5-1-.03(2)(a))

Alaska (Alaska Stat §§ 08.64.200, 18.16.010(a)(1))

Arkansas (Ark Code Ann § 5-61-101(a))

California (Cal Penal Code § 274; Cal Health & Safety Code § 123405)

Colorado (Colo Rev Stat Ann § 18-6-101(1), -102(1))

Connecticut (Conn Agencies Regs § 19-13-D54(a))*

Delaware (Del Code Ann tit 24 § 1790(a))

District of Columbia (DC Code Ann § 22-201)

Florida (Fla Stat Ann §§ 390.011(7), .0111(2))

Georgia (Ga Code Ann § 16-12-140(a), -141(a))

Idaho (Idaho Code § 18-605, -606, -608; 720)

Illinois (Ill Comp Stat Ann 510/3.1)

Indiana (Ind Code Ann § 16-34-2-1)

Iowa (Iowa Code Ann § 707.7)

Kentucky (Ky Rev Stat Ann § 311.750, .760)

Louisiana (La Rev Stat Ann § 40:1299.35.2)

Maine (Me Rev Stat Ann tit 22 § 1598; tit 32 §§ 2571, 3271)

Maryland (Md Code Ann, Health-General I § 20-208)

Massachusetts (Mass Gen Laws Ann ch112 §§ 121., 12M)

Michigan (Mich Comp Laws § 750.14)

Minnesota (Minn Stat Ann §§ 145.412, 147.02)

Mississippi (Miss Code Ann § 97-3-3)

Missouri (Mo Ann Stat § 188.020)

Nebraska (Neb Rev Stat § 28-335, -326(3))

Nevada (Nev Rev Stat § 442.250(1)(a))

New Jersey (NJ Admin Code tit 13, § 35-4.2(b))

New Mexico (NM Stat Ann § 30-5-1, -3)

New York (NY Penal Law § 125.05)**

North Carolina (NC Gen Stat § 14-44, -45, -45.1)

North Dakota (ND Cent Code § 14-02.1-04(1))

Ohio (Ohio Rev Code Ann §§ 2919.11, -4731.41)

Oklahoma (Okla Stat Ann tit 63, § 1-731(A))

Pennsylvania (Pa Cons Stat Ann § 3204(a))

South Carolina (SC Code Ann § 44-41-20)

South Dakota (SD Codified Laws § 34-23A-2 to -5)

Tennessee (Tenn Code Ann § 39-15-201(c))

Texas (Tex Health & Safety Code Ann §245.010(b); Tex Rev Civ Stat Ann art 4495b)

Utah (Utah Code Ann §§ 58-67-301, 58-68-302, 76-7-302(1))

Virginia (Va Code Ann §§ 18.2-71, -72)

Washington (Wash Rev Code Ann § 9.02.110, .120)

Wisconsin (Wis Stat Ann § 940.15(5))

Wyoming (Wyo Stat Ann § 35-6-111)

* The Connecticut Attorney General has issued an opinion stating that advanced practice registered nurses, licensed nurse-midwives, and physician assistants who are licensed in Connecticut may provide mifepristone abortions under the supervision of a "qualified physician."

**The New York State Department of Health has issued a letter interpreting New York's physician-only law to be inapplicable to physician's assistants acting under the supervision of a physician.

Table V. "TRAP" Laws

Alabama (Ala Admin Code r. 420-5-1-.01)

Arkansas (Ark Dept of Health Abortion Facilities Standards Act 509)

Connecticut (Conn Agencies Regs § 19-13-D45, -D54; Conn Gen Stat § 19a-116)

Florida (Fla Admin Code Ann r. 59A-9.019)

Kentucky (Ky Admin Regs 20:360 et seq)

Louisiana (La Admin Code tit 48, § 1.4505 et seq) (currently enjoined)

Michigan (Mich Admin Code R 325.3801 et seq; Mich Comp Laws §§ 333.20115, 333.17015(2))

Mississippi (Miss Code Ann § 45-75-1(h), -18, -29)

Missouri (Mo Code Regs Ann tit 19 § 30-30.050)

Nebraska (Neb Admin R & Regs tit 175, Ch 7)

North Carolina (NC Admin Code tit 10 § 3E.0101 et seq)

Oklahoma (Okla Admin Code 310:600-1-2)

Pennsylvania (Pa Admin Code § 29.33)

Rhode Island (RI Code R R23-1-TOP)

South Carolina (SC Code Ann Regs 61-12, § 101 et seq) (currently enjoined)

Tennessee (Tenn Code Ann § 68-11-223)

Texas (Tex Admin Code tit 25, § 139.1) (currently enjoined)

Wisconsin (Wis Admin Code Med § 11.04)

Table VI. Fetal Tissue Examination Laws

Alabama (Ala Admin Code r 420-5-1-.03(2)(e))

California (Cal Code Regs tit 22, § 75040(b))

Connecticut (Conn Agencies Regs § 19a-116-1(b)(6))

Illinois (720 Ill Comp Stat Ann 510/12)

Missouri (Mo Rev Stat §188.047; Mo Code Regs Ann tit 19, § 10-15.030)

Montana (Mont Code Ann § 50-20-110(2); Mont Admin R 16.24.804)

New Jersey (NJ Admin Code tit 8, § 43A-12.4(a))

Pennsylvania (Pa Cons Stat Ann § 3214(c))

Rhode Island (RI Code R R23-1-TOP, § 4.6)

South Carolina (SC Code Ann Regs 61-12, § 301) (currently enjoined))

South Dakota (SD Codified Laws § 34-23-A-19(3))

Texas (25 Tex Admin Code §§ 139.41(a)(2)(c), 139.53(l))

Utah (Utah Code Ann § 76-7-309; Utah Admin Code R432-600-24(6))

Table VII. Fetal Tissue Disposal Laws

Alabama (Ala Code § 22-9A-16(c); Ala Admin Code r 420-5-1-.03(2)(e))

Arizona (Ariz Rev Stat Ann § 36-331(B)(3))

Arkansas (Ark Code Ann §§ 20-17-801(a), 20-17-802(a))

California (Cal Penal Code § 643)

District of Columbia (DC Code Ann § 6-214(b))

Florida (Fla Admin Code r 59A-9.030)

Georgia (Ga Code Ann § 16-12-141.1(a)(1))

Michigan (Mich Comp Laws Ann § 333.28.48)

Minnesota (Minn Stat Ann § 145.1621, subd. 4)

Mississippi (Miss Code Ann § 41-39-1)

Montana (Mont Admin R 16.24.806(1))

New Jersey (NJ Admin Code tit 8, § 8:43A-14.7)

North Carolina (NC Gen Stat § 130A-131.10; NC Admin Code tit 15A, r 13B.1301)

North Dakota (ND Cent Code § 14-02.1-09; ND Admin Code § 33-03-02-05)

Ohio (Ohio Admin Code § 3701-47-05(A))

Oregon (Or Rev Stat § 432.317(3))

South Carolina (SC Code Ann Regs 61-12, § 304(H) (currently enjoined); 61-105(T)(10))

South Dakota (SD Codified Laws § 34-25-32.4)

Tennessee (Tenn Code Ann § 68-3-506)

Texas (Tex Admin Code §§ 1.133, 1.136(a)(4)(A)(ii))

Vermont (VT Stat Ann tit 18, § 5224)

Table VIII. Public Funding For Abortion^*
Alaska (Planned Parenthood v. Perdue, No. 3AN 98-7004 CI (Alaska Super. Ct. Mar. 16, 1999))	All or Most Circumstances
Arizona (Simat Corp. v. Arizona Health Care Cost Containment Sys. Admin., No. CV99-14614 (Ariz. Super. Ct. May 23, 2000))	All or Most Circumstances
California (Committee to Defend Reprod. Rights v. Meyers, 625 P.2d 779 (Cal. 1981))	All or Most Circumstances
Connecticut (Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986))	All or Most Circumstances
Hawaii (Haw. Admin. r. 17-17 27-49 (c)(7))	All or Most Circumstances
Idaho (Roe v. Harris, No. 96977 (Idaho Dist. Ct. Feb. 1, 1994))	Life, Rape, Incest, and Some Health Circumstances
Illinois (Doe v. Wright, No. 91 CH 1958 (Ill. Cir. Ct. Dec. 2, 1994))	Life, Rape, Incest, and Some Health Circumstances
Indiana (Clinic for Women, Inc. v. Humphreys, No.