Take Action
State Laws

Delaware


Political Information

Executive (Governor)

Pro-choice

Senate

Pro-choice

House

Pro-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Restrictions

Restrictions on Who May Provide Abortion Services

Delaware prohibits certain qualified health-care professionals from providing abortion services.

Only a physician licensed by the state may provide an abortion.  Del. Code Ann. tit. 24, § 1790 (Enacted 1969; Last Amended 1995).

Delaware also requires that surgical abortion be considered "office-based surgery" for purposes of facility accreditation purposes (neutral provision). H.B.219, 149th Gen. Assem. (Del. 2018).


Abortion Rights

Post-Viability Ban

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. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age.

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).


Protections: Freedom of Choice Act (FOCA)

Delaware has created additional protections for reproductive rights by adding an affirmative right to choose into its state law.  This law ensures women’s access to pre-viability abortion services and would remain in effect even if Roe v. Wade were overturned.

The state had a pre-Roe abortion ban that had been enjoined by the courts and an Attorney General opinion (Del.  Op. Att’y Gen. No. 73-030, §   III (Apr.  12, 1973)) making the restriction unconsitutional and unenforceable. In 2017, The legislature struck those restrictions and added the explicit right to pre-viability abortion and a more limited right to post-viability abortion – to protect the life and health of the woman and if the pregnancy experiences fetal anomaly. S.S. 1, 149th Gen Assem. (Del. 2017)


Biased Counseling

No state measure.

Mandatory Delays

No state measure.

Insurance Coverage for Abortion

No state measure.

Abortion Coverage for Low-Income People

Restricts 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).


Young People & Abortion

Parental Notice

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 an 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 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).


Family-Planning Policies

Insurance Coverage & Contraception

Supports Insurance Coverage of Contraception

Delaware law requires health-insurance plans that cover prescription medication to provide equitable coverage for contraception.

What is required?  If a health-insurance plan provides coverage for outpatient prescription medication, it must provide coverage for Food and Drug Administration-approved prescription contraception 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 medication.

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 contraception 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).


Improves Insurance Coverage of Contraception

Delaware law codifies the Affordable Care Act’s contraceptive-coverage policy by requiring that insurers cover without cost-sharing at least one prescription contraceptive drug, device, or product within each method identified by the Food and Drug Administration to prevent pregnancy.  If a prescriber deems a certain contraceptive drug or device medically necessary for a patient, the insurer must cover it without cost-sharing.  Insurers must also cover patient education and counseling on contraception, and related services, such as device insertion and removal. The law applies to all health-insurance plans, including plans for state employees, issued or delivered in the state.

The law contains a refusal clause that allows religious employers for whom contraception conflicts with their bona fide religious beliefs to refuse to provide or pay for contraceptive coverage. 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. This refusal clause is overbroad, jeopardizing insurance coverage for contraception for women. 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.

An employer exercising a refusal clause must provide its employees reasonable and timely notice of the exclusion.

Del. Code Ann. tit. 18, §§ 3342A, 3559; Del. Code Ann. tit. 29, § 5203 (Enacted 2018).


Improves Insurance Coverage of Contraception

Delaware law requires health-insurance plans to cover dispensing of a 12-month supply of prescription contraceptives.

Del. Code Ann. tit. 18, §§ 3342A, 3559; Del. Code Ann. tit. 29, § 5203 (Enacted 2018).


Improves Insurance Coverage of Contraception

Delaware prohibits most insurers from imposing any cost-sharing on at least one product in each FDA-approved contraceptive method.

Del. Code Ann. tit. 18, §§ 3342A, 3559; Del. Code Ann. tit. 29, § 5203 (Enacted 2018).


Contraception Coverage for Low-Income People

Improves Insurance Coverage of Contraception

Delaware law requires health-insurance coverage through Medicaid to provide benefits that allow for dispensing a 12-month supply of prescription contraceptive drugs at one time, whether or not the individual was covered under a Medicaid plan at the time it was  first dispensed.

Del. Code Ann. tit. 31 §526(b)(3) (West, effective July 11, 2018)


Supports Low-Income Women’s Access to Contraception

Delaware provides Medicaid coverage of over-the-counter emergency contraception without a prescription.

Del. Code Ann. tit. 31 §526(b)(2) (West, effective July 11, 2018)


Emergency Contraception

No state measure.

Other Important Issues

Clinic Protections

No state measure.

Refusals & Guarantees

Refusals of Medical Care

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?  Allows individuals to refuse to participate in medical procedures that result in an abortion.  Allows hospitals to refuse to permit abortion services 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 medication 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 birth control 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 2001).


Prohibits Reproductive-Health Discrimination

Delaware law prohibits employers from taking adverse employment action against an employee based on an employee’s or dependent’s decisions regarding reproductive-health care.

80 Del. Laws Ch. 291 (2016).


Counseling & Referral Bans

No state measure.

Everyone should be able to decide if, when, how, and with whom they start or grow a family.

Sign the Petition
By taking this action you are affirming your membership in NARAL Pro-Choice America. What's this?