Policy Matters: State Policy Round-Up

This edition of Policy Matters looks at some of the biggest, most divisive issues playing out at the state level in 2023. Several states are proving to be “trend-setters” – on the leading edge of certain policies that have captured the attention and energy of the national political parties. The outcomes of the 2023 state legislative session preview some of the issues that will dominate campaigns up and down the ballot in the 2024 elections.

Elections and Democracy

As the repercussions and reverberations of the 2020 and 2022 elections continue, a number of states are considering election reform legislation in 2023. Republican legislators are focused on tightening rules around absentee voting and registration, while Democrats work to expand access to the ballot box. Several states – and officials on both sides of the aisle – have pursued protections for election workers.

According to the Brennan Center for Justice, lawmakers in 32 states have pre-filed or introduced at least 150 restrictive voting bills so far in 2023. The Brennan Center also identified at least 274 bills in 34 states that would expand voting access.
Among the reforms under consideration, Republicans in Georgia, North Carolina, Texas and elsewhere have proposed requiring proof of identification for voting by mail, limitations on funds for election administrators and enhanced investigations into alleged election-related wrongdoing and fraud, as well as policies around initiating election reviews. Seventeen states so far have introduced 40 bills regarding presidential electors for the Electoral College; some related to the National Popular Vote Interstate Compact, others that would either address so-called “faithless” electors or allow electors to disregard or void election results.

Healthcare

During the pandemic, the number of people enrolled in Medicaid and the Children’s Health Insurance Program (CHIP) grew dramatically, increasing by 23.3 million individuals, in part due to Congress’ requirement that state programs continuously enroll individuals through the end of the COVID-19 emergency to qualify for federal funding. As of March 31, 2023, state Medicaid programs are now resuming eligibility reviews and removing individuals from their rolls, known as “unwinding.”

An estimated 15 million people stand to lose their Medicaid coverage and nearly half of those affected are Black or Hispanic. Five states – Arizona, Arkansas, Idaho, New Hampshire and South Dakota – announced they would be the first to terminate coverage for ineligible individuals. These Medicaid changes are also expected to affect industry groups that receive funding from state Medicaid programs, including hospitals and insurers.
At the same time, state resistance to Medicaid expansion through the Affordable Care Act appears to be fading, as North Carolina – and its Republican legislature – becomes the latest more conservative state to do so. Thirty-nine states have already expanded Medicaid, including via ballot initiative; most of the remaining states without the program are in the South.
States looking to tackle prescription drug prices have increasingly turned their attention toward pharmacy benefit managers (PBMs), the middlemen who administer prescription drug programs for health plans. Last year, 12 states enacted tighter regulations for PBMs. This year, states including Florida, Illinois, Massachusetts, Colorado and Minnesota are making PBM reform a priority, considering bills that would increase transparency, end surprise billing and eliminate “clawbacks.” At the federal level, the U.S. Senate Commerce Committee recently voted to advance a bipartisan PBM transparency bill.

Abortion and Reproductive Healthcare

When the U.S. Supreme Court (SCOTUS) ended the nationwide right to an abortion in June 2022, the majority ruled that it was time the issue of abortion was “returned to the people and their elected representatives” in the states. Along with “trigger laws” in place in more than a dozen states that went into effect following the Court’s ruling, many legislatures have again taken up the issue in the 2023 legislative session.

Some states continue to consider laws restricting or outlawing abortion – with or without exceptions – while others have moved on to considering potential criminal elements. South Carolina lawmakers considered applying state homicide laws; some legislators in Alabama, Arkansas and Oklahoma have indicated openness to prosecuting people seeking or obtaining abortions, proposing the removal of provisions to prohibit such consequences. The North Dakota Legislature passed a bill that bans abortion in most cases and makes performing or aiding the procedure a class C felony, punishable by up to five years in prison and/or a fine of $10,000.
A number of states have taken the issue to the people, either directly through ballot initiatives or in elections, including the recent Wisconsin Supreme Court election. Voters have consistently voiced support for maintaining some degree of abortion rights. And states – especially Democrat-led states – have sought to codify protections into law.
In Kansas, the Republican legislature is still moving to restrict access to abortion care despite the voters’ rejection of a constitutional amendment eliminating the right to an abortion. In Idaho, the governor signed a bill to address so-called “abortion trafficking” by restricting minor residents’ interstate travel for abortion.
The fight around abortion and reproductive rights is far from over and the courts – including SCOTUS – will decide the legality of many of the new restrictions. Meanwhile, anti-abortion advocates are particularly focused on limiting medication abortion nationwide, regardless of state regulation. On April 7, 2023, a district court judge in Texas overturned the Food and Drug Administration’s 2000 approval of mifepristone – one of the two drugs commonly used in a medication abortion – jeopardizing its use. The U.S. Department of Justice is appealing and the Supreme Court has put the ruling on hold temporarily. In the meantime, some blue states – and individuals – are stockpiling mifepristone.

Gun Rights and Safety

Recent deadly shootings – including in Nashville, Tenn., Louisville, Ky. and Dadeville, Ala. –have sparked renewed calls for additional gun control measures nationwide. Pro-regulation protests from students, parents and lawmakers in Nashville evolved into a separate political crisis when two Democratic state lawmakers were expelled from the legislature for protesting on the chamber floor; both have since been reinstated.

On April 12, 2023, Tennessee Gov. Bill Lee (R) signed an executive order strengthening background checks for gun purchases and called on the legislature to pass an “order of protection” law. Nineteen states currently have such “red flag” laws, empowering immediate family members or law enforcement to petition a court for temporary removal of guns from a person posing a danger to themselves or others.
Among new state gun restrictions, Maryland Gov. Wes Moore (D) will sign a bill that would prevent concealed handguns in sensitive areas like school playgrounds, hospitals or polling locations. And the Washington State legislature passed a bill outlawing the sale of assault weapons.
Meanwhile, several states have passed more permissive gun laws. Florida Gov. Ron DeSantis (R) signed a bill allowing people to carry concealed weapons without licenses or training and North Carolina lawmakers overrode Democratic Gov. Roy Cooper’s veto, repealing a requirement that sheriffs vet gun owners who apply for pistol permits.

ESG

Environmental, social and governance (ESG) investing continues to be a hot-button issue in state legislatures. Republicans in more than a dozen states have introduced or are considering taking action on bills that would curb ESG investments and policies.

Nineteen Republican governors formed an alliance to oppose consideration of ESG measures in investments and to counter what some lawmakers believe to be corporate “boycotts” of fossil fuel companies or firearms manufacturers.
As of March 2023, at least seven states have passed anti-ESG laws to prohibit state entities from putting state funds toward any investment that considers ESG – or “nonpecuniary” – measures. (Some research suggests anti-ESG investing measures may actually cost states.)
Several states have advanced or are considering legislation that would target companies that “boycott” or “discriminate” against certain industries and investments disfavored among ESG proponents. In some instances, the measures would result in state-maintained blacklists of companies perceived as engaging in such practices, to facilitate divestment – generating backlash. Other states would require companies to commit to not boycotting or discriminating against industries while contracted with public entities in the state.

Education and Parental Rights

Partly in response to pandemic-era remote learning, education and “parental rights” issues continue to dominate state legislatures across the country, from school choice to restrictions on curriculum and programming related to sexual orientation and gender identity, diversity, equity and inclusion and critical race theory.

This session, at least 34 states have considered legislation to authorize or expand programs allowing parents to use state funds to cover private education. And 32 states – up from 18 in 2022 – are considering parental rights legislation. The U.S. House of Representatives passed a federal parental rights bill last month.
Florida continues to lead the charge, establishing one of the largest universal school choice programs in the country and expanding last session’s Parental Rights in Education bill (referred to by opponents as “Don’t Say Gay”) – which prohibits discussing or teaching sexual orientation and gender identity between kindergarten and third grade – from pre-k to eighth grade. Legislators in other states have acknowledged they are playing catch-up to Florida – and its governor, likely 2024 presidential candidate Ron DeSantis (R) – on these issues.
Alongside parents’ bill of rights legislation have come restrictions on library content – in schools and public libraries – to limit minors’ access to materials considered by some to be “obscene,” “pornographic” or “harmful.” Opponents raise concerns about censorship and discrimination, as many of the most commonly removed books feature LGBTQ+ stories.

LGBTQ+ Rights and Healthcare

LGBTQ+ rights – especially for the trans community – are under attack in a number of states; more than 400 anti-trans, anti-LGBTQ bills have been introduced so far this year – double the number in 2022 and more than the last four years combined.

In addition to restrictions on education, books and resources related to sexual orientation and gender identity, anti-trans legislation includes limitations on gender-affirming care for minors, as well as criminal and/or civil measures associated with providing such care. The debates have proven contentious in a number of legislatures; Nebraska’s bill banning transition-related medical care for minors ground the unicameral legislature to a halt for several weeks.
Other LGBTQ-related bills include restrictions on trans students’ ability to use restrooms and participate in sports based on their gender identity and use their preferred pronouns at school, as well as the ability of minors to attend drag shows. Several states are seeking to counter these efforts with laws enshrining LGBTQ+ rights.

Tech and Data Privacy

Congress has been unable to pass a national data privacy law, despite some bipartisan momentum last Congress. In the absence of a national standard, states continue to fill the void. Comprehensive consumer privacy legislation has been introduced or considered in at least 25 states in 2023.

On March 28, 2023, Iowa became the sixth U.S. state to enact a state privacy law, joining California, Colorado, Connecticut, Utah and Virginia. Many of these laws have common provisions, such as the right to access and delete personal information and to opt-out on the sale of personal information.
While most of the existing state privacy laws and proposals under consideration focus on giving consumers greater control over their personal information online, Florida has taken a unique approach. Gov. DeSantis recently called for a “digital bill of rights” that would combine elements of comprehensive data privacy laws from other states with provisions geared to reign in the largest tech companies, related to concerns with how online platforms moderate content.
On April 14, 2023, Montana became the first state to outright ban TikTok. Since late 2022, more than two dozen states have banned TikTok on government devices over security concerns through a mix of gubernatorial executive orders and state legislative action. What started as a Republican-led effort is now a bipartisan one. The bans have also been expanded to universities, with Wisconsin among the most recent states to adopt measures banning the use of TikTok across university-owned devices – an approach Florida broadened to include campus Wi-Fi at state universities in April.