ANTI-CHOICE LAWS
Abortion Ban
NEAR-TOTAL
Delaware has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.
The unenforceable ban provides that a woman may not obtain an abortion unless it is authorized by a hospital abortion review authority that must find that: (1) the pregnancy resulted from incest, or rape or unlawful sexual intercourse committed as a result of force or bodily harm and the Attorney General certifies that there is probable cause to believe that the alleged rape or unlawful sexual intercourse occurred; (2) continuation of the pregnancy is likely to result in the death of the woman or poses a substantial risk of permanent injury to her physical or mental health; or (3) there is a substantial risk that the woman will deliver a child with grave and permanent physical deformity or mental retardation. In each of these circumstances, except rape or unlawful sexual intercourse, two physicians must certify to the review authority that one of these conditions exists. In no event does the ban permit abortion if more than 20 weeks of gestation have passed.
No person may give advice or information for the purpose of causing an unauthorized abortion. A person who causes an unauthorized abortion is guilty of a felony and shall be fined up to $5000 and imprisoned for two to ten years. A woman who causes or submits to her own unauthorized abortion is guilty of a misdemeanor. A person who manufactures or sells any instrument, drug, or substance for the purpose of causing an unauthorized abortion is guilty of a misdemeanor.
Del. Code Ann. tit. 11, §§ 651 (Enacted 1989), 652 (Enacted 1989), 653 (Enacted 1989); Del. Code Ann. tit. 24, §§ 1766 (Original Statute Enacted 1895; Relevant Provision Added 1970; Last Amended 2005), 1790 (Enacted 1969; Last Amended 1995), 1792 (Enacted 1969; Last Amended 1995).
The Delaware Attorney General issued an opinion stating that Delaware abortion laws are invalid to the extent that they conflict with Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), and issued a Statement of Policy declaring that violations of these provisions will not be prosecuted. Del. Op. Att'y Gen. No.73-030 (Apr. 12, 1973); Statement of Policy, Attorney General of Delaware (Mar. 24, 1977). See Delaware Women's Health Org. v. Wier, 441 F. Supp. 497, 499 n.9 (D. Del. 1977) (challenge to criminal abortion law dismissed because plaintiffs not exposed to a genuine threat of enforcement).
Biased Counseling & Mandatory Delay
Delaware has a partially unconstitutional and unenforceable law that provides that a woman may not obtain an abortion until at least 24 hours after she gives her written consent. Prior to giving consent, a woman must receive a state-mandated explanation of the abortion procedure and its effects that must include: (1) a description of fetal development; (2) an explanation of the proposed procedure, its risks, and the alternative procedures; (3) the probable effects of the procedure on the woman's future childbearing ability and on possible future pregnancies; and (4) an explanation of alternatives to abortion. Del. Code Ann. tit. 24, § 1794 (Enacted 1979).
In 1983, the Delaware attorney general issued an opinion stating that the 24-hour waiting period was unenforceable. Del. Op. Att'y Gen. No. 83-I023 (July 27, 1983). In early 2003, the state notified doctors that it would begin prosecuting cases under the law. Planned Parenthood and other abortion providers filed a lawsuit challenging the constitutionality of the mandatory delay. A court held that the waiting period is unconstitutional and permanently enjoined its enforcement. Planned Parenthood of Del. v. Brady, 03-153-SLR (D. Del. June 9, 2003) (opinion and order).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Delaware allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals and hospitals.
What does the refusal clause allow? No person may be required to participate in medical procedures that result in an abortion. No hospital may be required to permit abortion within its institution. The refusal to participate or permit may not be a basis for civil liability or other recriminatory action.
Does the law require the refusing individual or entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Del. Code Ann. tit. 24, § 1791 (Enacted 1969; Last Amended 1995).
INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although Delaware law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers may require issuers of their health insurance plans to exclude coverage for contraception.
To whom does the refusal clause apply? Religious employers for whom contraceptive coverage conflicts with their bona fide religious beliefs.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for insertion, removal, or medically necessary examinations associated with covered contraceptive drugs and devices if such coverage conflicts with the employer's bona fide religious beliefs and practices.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. By failing to define the term "religious employer," the law's refusal clause inappropriately includes a wide range of entities that perform non-religious functions in the public sphere.
Does the law require the refusing entity to notify the persons affected? Yes. An employer exercising a refusal clause must provide its employees reasonable and timely notice of the exclusion.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Del. Code Ann. tit. 18, § 3559 (Enacted 2000).
Restrictions on Low-Income Women's Access to Abortion
Delaware prohibits public funding for abortion for women eligible for state medical assistance for general health care unless: (1) the life of a woman is endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself; (2) the pregnancy is the result of incest reported to the police; or (3) the pregnancy is the result of rape reported to the police unless the physician documents in writing that the adult woman has just cause for not reporting the rape. 2:6 Del. R. 984; Practitioner Provider Specific Policy Manual § 2.7 and Appendix M, Abortion Justification Form (Rev. July 1, 2002) at http://www.dmap.state.de.us/downloads/manuals/Practitioner.Provider.Specific.pdf.
Restrictions on Young Women's Access to Abortion
Delaware law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 16.
What is required - parental consent or parental notice? Notice.
Who must be notified? One parent.
Are there other trusted adults who may be notified instead? Yes, if a grandparent or licensed mental health professional who is not an employee of an abortion provider is notified of the abortion, counsels the young woman that the options available to her include adoption, abortion, and full-term pregnancy, and agrees that it is in the young woman's best interest to waive the parental notice requirement.
What is the process for providing notification? A young woman may not obtain an abortion until 24 hours actual notice has been given by the physician, an agent of the physician, or a medically authorized person to one parent.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a medical emergency exists that so complicates the pregnancy as to require immediate abortion.
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and well informed enough to make her own decision or that waiver of notice is in her best interests.
Are there other significant requirements under the law? The Division of Child Mental Health Services shall offer counseling and support to any young woman who is pregnant and may file for court-ordered waiver of notice.
Has a court considered the constitutionality of this law? No.
Other information about the law: Delaware's unconstitutional and unenforceable pre-Roe law prohibits an unmarried young woman under 18 from obtaining an abortion without the written consent of the parents with whom she resides or, if she does not reside with either, the written consent of one parent. Del. Code Ann. tit. 24, §1790 (Enacted 1969; Last Amended 1995). The Delaware Attorney General has issued a Statement of Policy stating that the state will not prosecute for failure of a young woman to obtain consent pursuant to this law. Statement of Policy, Attorney General of Delaware (Mar. 24, 1977). See Del. Women's Health Org. v. Wier, 441 F. Supp. 497, 499 n.9 (D. Del. 1977).
Del. Code Ann. tit. 24, §§ 1780 to 1789B (Enacted 1995).
Targeted Regulation of Abortion Providers (TRAP)
Restrictions on Who May Perform Abortions
Delaware prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed by the state may perform an abortion. Del. Code Ann. tit. 24, § 1790 (Enacted 1969; Last Amended 1995).
PRO-CHOICE LAWS
Contraceptive Equity
Delaware law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for outpatient prescription drugs, it must provide coverage for Food and Drug Administration-approved prescription contraceptive drugs and devices and outpatient contraceptive services.
To which insurance plans does the law apply? All group and blanket health insurance plans delivered or issued in the state by health insurers, health service corporations, health maintenance organizations, or any health services and facilities reimbursed programs for the state that provide coverage for outpatient prescription drugs.
Does the law provide additional protections for women? Yes. Insurers shall impose the same terms and conditions as for other benefits and may not impose a copayment, coinsurance, or deductible for directly-accessed gynecological services under this law that is different from that imposed for access to other health care services.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious employers for whom contraceptive coverage conflicts with their bona fide religious beliefs.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for insertion, removal, or medically necessary examinations associated with covered contraceptive drugs and devices if such coverage conflicts with the employer's bona fide religious beliefs and practices.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? Yes. By failing to define the term "religious employer," the law's refusal clause could include a wide range of entities that perform non-religious functions in the public sphere.
Does the law require the refusing entity to notify the persons affected? Yes. An employer exercising a refusal clause must provide its employees reasonable and timely notice of the exclusion.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Del. Code Ann. tit. 18, § 3559 (Enacted 2000).
Low-Income Women's Access to Family Planning
Delaware provides increased access to reproductive health care services through a Section 1115 waiver. As part of this waiver, the state is allowed to cover family planning services for up to 24 months for women who lose Medicaid eligibility.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: health education and counseling; limited history and physical examination; laboratory tests if medically indicated as part of decision-making process for contraceptive methods; diagnosis and treatment for STI's if medically indicated; screening, testing and counseling of at-risk individuals for HIV and referral for treatment; follow-up care for complications associated with contraceptive methods issued by the family planning provider; provision of contraceptive pills, devices, and supplies; tubal ligation, pregnancy counseling and testing.
The will expire on Dec. 31, 2009.
Del. Diamond State Health Plan Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., Dec. 31, 2006; Del. Medicaid Managed Care, 1115 Waiver Protocol Doc., Sept. 22, 1995; Medicaid Waivers and Demonstrations List, Details for Del. Diamond State Health Plan 1115, Ctrs. for Medicare and Medicaid Servs. at http://74.125.45.132/search?q=cache:fi8yJ1QDF7oJ:www.cms.hhs.gov/medicaidstwaivprogdemopgi/mwdl/ItemDetail.asp%3FItemID%3DCMS035515+delaware+diamond+state+health+plan+demonstration+fact+sheet&hl=en&ct=clnk&cd=2&gl=us (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
OTHER LAWS
Post-Viability Abortion Restriction
Delaware's post-viability restriction states that no abortion may be provided after the 20th week of gestation unless continuation of the pregnancy is likely to result in a woman's death. Del. Code Ann. tit. 24, § 1790(b)(1) (Enacted 1969; Last Amended 1995).
The Delaware attorney general has issued an opinion stating that this provision is inconsistent with Roe v. Wade and therefore invalid and has issued a statement of policy declaring that violations will not be prosecuted. The opinion notes that this provision prohibits abortion services unless necessary to save the woman's life or at other certain times. Del. Op. Att'y Gen. No. 73-030 (Apr. 12, 1973); Statement of Policy, Attorney General of Delaware (Mar. 24, 1977). See Del. Women's Health Org. v. Wier, 441 F. Supp. 497, 498-99 n.9 (D. Del. 1977).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman's life and health. NARAL Pro-Choice America opposes Delaware's law because it lacks a health exception. NARAL Pro-Choice America also opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortion by defining viability at 20 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
