I’m a fan of birth control and religious freedom

Melissa Torres-Montoya, Resident Blogger (’11, University of California, Berkeley School of Law)

Admittedly, I’m a huge fan of March Madness. I jumped on board with the madness; making the effort to watch my favorite team (go Bruins!) specifically at the bar that serves as DC’s “official” UCLA bar, hanging out with friends who had brackets so we could enthusiastically and nonstop talk/compare our brackets, and basically addictively watching the games.  While this March Madness is at the end of the day all fun and games, the real madness that is going on this March is the Supreme Court hearing of Sebelius v. Hobby Lobby.
The precise legal question has to do with religious freedom.  As this National Public Radio piece points out, the legal standard for whether a law infringes upon the constitutionally granted right from laws “prohibiting the free exercise” of religion has changed over the years.  And this summer the Supreme Court will issue its decision as to whether  the new law requiring employers to provide health insurance that includes coverage for contraception poses a substantial burden on the corporate owner’s of Hobby Lobby’s right to free exercise of religion and whether as corporate owners they even have such a legal right.  The madness in this all, for me, is the non legal question here is that, for some, the question exists as to whether contraception is even considered a preventive health measure.  
Former Bush administration Solicitor General Paul Clement bemoans that “The federal government for the first time has decided that they are going to force one person to pay for another person’s not just … hip replacement, but something as religiously sensitive as contraception and abortifacients.”  Hobby Lobby, of course, would never challenge coverage of a hip replacement for a 75 year old employee who fell down the stairs.  Nor should they challenge the use of a medication by a 34 year old fertile woman to prevent pregnancy, a medical condition that changes a woman’s body so that she’ll grow a whole new human within her.  According to the world health organization family planning, ”allows spacing of pregnancies and can delay pregnancies in young women at increased risk of health problems and death from early childbearing, and can prevent pregnancies among older women who also face increased risks.“  Spacing of pregnancies, as experts at the Mayo Clinic describe, has medical implications.  So yes, contraception is just another medical treatment that should be included in health insurance coverage as routinely as say, a hip replacement or high cholesterol medication. Hopefully, a majority of the justices see it the same way and publicly identify contraception as a critical, routine and medically accepted preventive health measure.
Today, the Supreme Court is listening to oral arguments on this case and like most women in the U.S., I oppose Hobby Lobby’s attempt to carve out some contraception from the health insurance plan it provides its employees. I’m publicly acknowledging today that I’m a fan of birth control and religious freedom.  You should too.  Make your new cover page this or pledge your support here.

Getty Images & The Lean In Collection – There’s Room to Lean Further

Deodonne Bhattarai, Resident Blogger (’12, Northeastern University School of Law)

Last month Getty Images, in collaboration with Facebook CEO Sheryl Sandberg’s LeanIn.org nonprofit foundation, launched over 2,500 new stock images aimed at depicting “female leadership in contemporary work and life”. As a collection, the images are a beautifully composed collage of picture perfect women, girls, families, and friendship. However, taken individually, some of the images may perpetuate a problematic oversimplification of what it takes for women to thrive in the corporate world.

A number of the images play with the work/life balance motif, showing thin, stylish women in contemporary work and home office settings.  In an interview with NPR, Getty’s Pamela Grossman discussed how these images were intended to present an updated and more dynamic vision of motherhood.

“The older model would be that … the mother looked incredibly harried, and she would be juggling a dinner plate in one hand and a baby in the other. Sometimes even more arms would be Photoshopped onto her to show just how indeed she was juggling it all.”  Grossman compared this outdated model of a multitasking mom with that depicted in the LeanIn Collection, “They really feel like they have contemporary style, and they’re engaged and energetic.”

Although the intent behind the collection is admirable, it is hard not to question whether this contemporary view of working mothers may be setting an unobtainable bar for those of us contemplating or trying to balance motherhood with a career.  In a country where income inequality continues to grow and women face a wage gap of $.77 to every dollar earned by a man, where most lack access to paid maternity leave, where the glass ceiling and maternal wall are still very much intact for women pursuing corporate leadership, and where female attorneys represent less than one-third of lawyers at law firms (a number that has actually been dropping for the past four years), the new Collection presents a picture that is hard to reconcile with the reality working mothers face.

Many of the images of working mothers show them sitting at their immaculate desks, working on their laptops while young children balance on their knee or sit serenely nearby. How do these women manage to keep their children from grabbing at the laptops, pouring coffee over the keyboards or pulling on their dangly earrings and perfectly coiffed hair?  Where are these women supposed to be?  Certainly not at work-I have no data on this but I bet there are more dog friendly offices in the U.S. than child friendly.  So are these mothers supposed to be representing the women who are fortunate enough to have a flexible working schedule that allows them to work from home? If so, they must be wealthy enough to afford housekeeping because their offices are immaculate with few or no toys in sight for their perfectly behaved children.

Although the collection does include women of various ethnic backgrounds and ages, it fails to move past the model thin and designer dressed. The idea of a more “contemporary” working mother is nice, but at the end of the day these are stock photos used to depict artificial scenarios in order to sell a product or service, or to communicate a point of view or sentiment..

To claim that the Collection serves a loftier dual purpose is an overreach and I question whether these images of the “contemporary” working mother are actually an improvement upon the traditional multi-armed multitasking mother. What woman can possibly live up to the unrealistic standards these images depict while trying to succeed in a world where working women continue to be discriminated against because they are mothers. The Collection’s embrace of the unrealistic while touting it as “empowering,” left me feeling just the opposite – how will I ever be able to obtain such a lifestyle while balancing my legal career with the needs of my family?

Would I trust my partner with birth control?

Melissa Torres-Montoya, Resident Blogger (’11, University of California, Berkeley School of Law)

Would I trust my partner with birth control?  Thinking of past partners the answer would have to be; yes, yes, no, maybe, absolutely not.  Which I guess mean that my answer to that question has changed over the years so it really depends. With technological breakthroughs and the eventuality of a male birth control, this is a question that will be contemplated more and more often.

Vogue recently published a story on their website where one man shared he and his wife’s exploration of this question.  While he brings up some interesting points, issues that I’m sure will cross the minds of many when tackling this question, their exploration of a male using birth control mostly reenforces gendered stereotypes, lacks real acknowledgment of how each relationship is unique as is their decisions about how to control their fertility.  When the writer of this Vogue profile & platform piece describes how he and his wife discussed the idea of a male in control of birth control more generally than just within their own relationship, he describes how his wife found the idea of “putting a male in charge of contraception” “amusing,” even suggesting “that putting the male in charge of contraception would just embolden him to have sex with random women, and riskier sex at that; unlike a condom, the pill would do nothing to prevent disease.”  Not surprisingly, these same concerns were expressed when a female birth control pill was developed.  These are also some of the same concerns that are currently being expressed about PrEP, a daily pill that works sort of like birth control but instead to reduce the likelihood of HIV transmission rather than pregnancy.  I won’t argue that social norms around sex haven’t entirely changed since the advent of the birth control pill, and while some conservatives would argue the family system has broken down, I think it’s pretty evident that monogamous relationships, marriage and family units still remain the overwhelming norm even while most women at one point in their lives use a form of contraception.  The birth control pill and other new contraceptive options have revolutionized sexual agency, allows couple’s to plan pregnancies and has been instrumental in women being able to enter into the work force.  Both PrEP and the male birth control pill could provide similarly positive social benefits.

Sure, there could be the instance where both people in a couple slip up on their pill, thinking they have double protection because they’re both using a form of birth control.  And maybe we might have to redouble sex education efforts to make sure that everyone ACTUALLY knows the only way to prevent STIs is through condom use.  But the addition of a male birth control pill as a contraceptive option, allows more individuals to take control of their fertility, allowing them to choose when and whether they ever want to become parents.  Similarly, while PrEP may not be a medication that should be recommended for everyone, it does offer one more avenue for people to engage in sexual activity while safeguarding their sexual health by reducing the likelihood that they will become HIV+.  I, for one, am all for developing more options that allow for sexual agency and overall improve the public’s health, as well as pushing forward a society in which we trust both men and women to each take actions to protect their sexual and reproductive health.

Reproductive Justice as Self-Determination

Ruth Dawson, Resident Blogger (’12, Emory University School of Law)

A report recently came out about the conditions of women members of the Revolutionary Armed Forces of Colombia (FARC), the country’s biggest rebel group.  Though there is a “veneer of [gender] equality” in the organization, the report tells horrific stories of women, including young teenagers, forced to receive contraceptive shots and forbidden from having children.  Perhaps most sickening are the accounts of FARC women being forced to have abortions, or losing their infants to infanticide, in the instances when they did become pregnant.

But I am not disgusted by the bare fact that the women had abortions or used contraception.  Instead, as a reproductive justice advocate, I am most deeply troubled by the way these women were stripped of agency.  Forced contraception, forced abortion, and – not unlikely – forced sex, all strip women of self-determination.

Reproductive justice encompasses far more than the affirmative right to access birth control or abortion, as many opponents seem to believe.  Instead, RJ is about all people deciding if they want to have children, and if so, when and how to have and raise them.  Reproductive justice represents a broad universe of control over one’s own body, and over one’s self.  And that control goes in both directions.  The key to reproductive justice, then, is not just that people are using birth control, or that people are having abortions.  Rather, it is that individuals are making these decisions, unforced and uncoerced, for themselves.

Today’s Special: Red Herring

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Abortion and rape are two emotional issues, which is why it is critical to think before speaking about either.  In a recent Slate article, Emily Bazelon underscores this point by examining the claim made by anti-choice lawmakers that rape rarely results in pregnancies.  The claim is made in an effort to oppose extending late-term abortion access to rape victims.

Bazelon reveals that the only science backing this claim is experimentation in Nazi Germany.  During Hitler’s regime, anatomist Dr. Hermann Stevie used the bodies of 174 executed – mostly reproductive-age – females to study the effects of stress on the female reproductive system.  He found imprisoned women awaiting execution experienced less ovulation and sometimes had “shock bleedings.”

In 1972, anti-choice obstetrician Fred Mecklenburg butchered Stevie’s research, writing that the Nazis selected women who were about to ovulate, sent them to a mock-gas chamber, then brought them back to study the effect on their ovulatory pattern.  The result, he reported, was that an extremely high percentage of these women did not ovulate.

As Bazelon points out, “prison wasn’t the gas chamber.  And the prolonged trauma of anticipating execution isn’t the same as the shock of rape.”  Yet Mecklenburg’s report is the basis for anti-choice claims that women don’t get pregnant from rape.

We all have reasons for our stance on abortion.  They may be rooted in fact, ideology, or personal experience.  But please, not in German Nazi-era science.  It’s imperative that when it comes to abortion politics, we do more than just appeal to emotion. That won’t get us anywhere.

If I Were Ruth Bader Ginsburg…

Amanda Shapiro, Resident Blogger (’15, Brooklyn Law School)

Last week, I watched in horror as the Fifth Circuit approved a Texas law that will prevent one third of abortion providers from performing much-needed services. I had two thoughts: (1) I was reminded of the saying in Austin, TX, “The problem with Austin is that once you leave it, you’re in Texas;” and (2) if this gets appealed to SCOTUS (it did), and I were Ruth Bader Ginsburg (RBG), what would I do? If I (RBG) don’t grant certiorari,Texan women will face almost insurmountable barriers to abortion access and let’s face it this is just the latest terrible attack on access to reproductive health services; but if I do, I risk making the Texas law a model move in the war-on-women playbook.

After pondering RBG’s thoughts, I began to think about the cultural climate that produced anti-abortion sentiments today. We have movies like Juno and Knocked Up (recall “shmashmortion”) that gloss over unplanned pregnancies, and that refuse to entertain abortion as an option. But remember the ‘70s? Abortion wasn’t a bad thing. Remember Fast Times at Ridgemont High? That movie had an excellent abortion scene. Stacy has a regretful sexual encounter, she gets pregnant, and the guy (Damone, ugh.) refuses to help her pay for the abortion. But she gets one, and there’s no uproar. The outrage is correctly directed at Damone (ugh.) for just sucking overall. Let me be clear, Fast Times—the movie that features oral sex on carrots, and Sean Penn as a greasy-haired, Hawaiian-shirted stoner—handles abortion better than most of the country today. I don’t know what I would do if I were RBG, but if I were Harvey Weinstein, I would be getting at least one of my leading ladies out of maternity clothes, and into the abortion clinic.

Country Girl Meets Urban Midwifery

Deodonne Bhattarai, Resident Blogger (’12, Northeastern University School of Law)

I, like my three siblings before me, was born at home.  My mother tells the story each year on my birthday of her midwife declaring, minutes before my birth, that the loft of our log cabin was too cold to have a baby – this is how I came to be born in front of the wood stove in our kitchen. My mother’s midwife and close friend, Carol Leonard, is the author of many books including Lady’s Hands Lion’s Heart – A Midwife’s Saga. She is a foremother of the modern midwifery movement and from the moment she caught me, Carol has played an important role in my life-even writing one my letters of recommendation for the Massachusetts Board of Bar Examiners.

In the years since my birth, I have moved from my rural New England community to downtown Washington, DC, and I now find myself navigating the very murky waters of urban midwifery as I chart out my own birth plan.  How does one go about planning a home birth while living in a condo surrounded by neighbors?  Do you announce it like you might a party, slipping fliers under doors apologizing in advance for the noise that might be emanating from your apartment during a possible two-week window? Is homebirth even allowed or has it been banned by our condo association bylaws along with the hanging of our laundry on our balcony? There are also state regulations that determine the availability of midwives and much like abortion providers, the greater the regulatory burden the harder it is for women to access the services. Delaware’s regulations for example, require non nurse-midwives to have a written collaborative practice agreement with a physician but only one midwife has successfully received a permit to practice in ten years – a hurdle that echoes those faced by abortion providers all over the country.

At a recent panel at the Beyond Roe Conference, speakers reminded us that unlike the majority of our great-grandmothers who gave birth at home, today only 1% of women in the U.S. give birth outside a hospital.  Like many, my own experience has informed how I view birth.  Two of my three nieces and my nephew were born at home and the idea of a hospital birth is a foreign one to me.  Carol set the bar high for what I expect in a midwife. However, what I always viewed as a straight forward decision is now, due to my changed geography, fraught with unexpected complexities.



S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Karla and Jacob dated 5 months before she was diagnosed with lymphoma.  Since cancer treatment would render Karla infertile, Jacob provided his sperm for a hospital to develop embryos and cryogenically store them until a later date.  Two months later, he dumped her (via text message).  Now, three years later and cancer-free, the couple is in “limbryo” as a court determines whether to grant Jacob’s injunction against Karla implanting the embryos.

Szafranski v. Dunston[1] illustrates just how far procreation has been separated from parenting – and we’ve only seen the tip of the iceberg.  The first human created through IVF in the US was born in 1981.  Since then, surrogacy and the purchase or donation of biological material has resulted in the birth of 5 million babies conceived using ART.[2]  Parenting via contract isn’t a new phenomenon – we’ve been doing it as long as adoption has been in existence.  Procreating by contract is.

But when contracts fail, potential procreators have the constitution on their side.  And there is nothing up to this point showing that Szafranski or Dunston had a contract. Szafranski’s essential argument in the case is that Dunston is violating his constitutional rights, asserting constitutional notions of privacy.  Dunston has potential contract-based arguments in estoppel or performance, but her essential stance has been that her constitutional right to become a parent trumps his constitutional right not to.  Can’t the court see that this is just Roe in reverse?

As we move towards a more artificial era of child conception, its important to take a stance on whether genetic material is used against our will. Unless there is a contract in place, there should be contemporaneous mutual consent to the use of embryos.  Just think how Dunston would feel if Szafranski wanted to implant an embryo into his wife?  I have a feeling she’d be singing a different constitutional tune.

[1] http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1122975.pdf

[2] http://anthropologyworks.com/index.php/2013/02/14/assisted-reproductive-technologies-reviewing-recent-perspectives-and-addressing-research-gaps-in-medical-anthropology/

Abortionomics: Sex-selection

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Worried that the job market for lawyers is decreasing?  Well thank the pro-life movement for keeping us in business.  North Dakota alone has allocated $400,000 for the second half of 2013 to defend its unconstitutional abortion ban.

Let me start from the beginning.

Sex-selective abortion is when a woman chooses to abort based on the sex of her fetus.  In regions of Asia and Eastern Europe where the practice is so pervasive that the at-birth ratio of males to females is as low as 100:86, selective-sex abortion contributes to gender inequality in addition to a host of other ugly societal problems.

Here in the United States, where “son preference” isn’t a deeply held conviction, sex-selective procreation doesn’t lead to the same results.  The at-birth ratio of males to females has been the standard 100:95 since 1940.  Furthermore, sex-selective abortion isn’t the only way to achieve sex-selective procreation.  Pre-implantation methods like sperm-sorting and PGD are less invasive alternatives.

In her reporepro entry “Is Banning Abortion the Answer to Sex-Selective Practices? (Hint: No.),” Christine Poquiz did a fantastic job addressing sex selection.  In short, if a woman wants to abort, for any reason, then restricting her autonomy to do so (at least pre-viability) violates Roe as amended by Casey.

Yet anti-choice activists get abortion laws on the books, couching them in terms of sex-selection bans.  How?  By plastering their lobbies with the social problems in Asia and Eastern Europe.  This doesn’t make sense.  If gender inequality were really their reason for ending sex-selection, then they would also be lobbying to eliminate sperm-sorting and PGD.

Illinois, Pennsylvania, Oklahoma, Arizona and North Dakota have sex-selective abortion restrictions on the books,[1] and 11 other states have bills pending[2]…  Bad news for reproductive justice.  These laws clearly violate Roe/Casey.

Now back to the whole job market thing.  See where I’m going with this?  Anti groups pay lawyers to help enact this legislation.  Reproductive justice watchdogs pay lawyers to challenge the laws.  The North Dakota law is currently being challenged in MKB Management, Inc. v. Burdick.  Lawyers attacking it, lawyers defending it.  Lawyers, lawyers, lawyers!

On a serious note, these laws are unconstitutional from the start.  Anti groups insidiously use propaganda totally out of context to get them on the books.  It’s an utter waste of lawyers’ time, judicial dockets, and millions of dollars, all of which could be better spent on actual legal issues.

SJ Chapman is a graduate of UNC Chapel Hill and Northwestern Law School.  She studies and writes in the field of critical familism.  You can read more at her home blog adoptanewwayofthinking.com

[1] Illinois (720 ILCS 510), Pennsylvania (8 Pa C.S.A. Section 3204), Oklahoma (O.S. §63-1-731.2), Arizona (A.R.S. §13-3603.02), North Dakota (HB 1305, § 14-02.1).

[2] Colorado (Non-discrimination Act), Florida (CS/HB 845 and SB 1072), Indiana (HB 1430), Missouri (HB 386 “Abortion Ban for Sex Selection and Genetic Abnormalities Act of 2013), New Jersey (A2157), New York (A02553/S02286, North Carolina (H716), Texas (HB 309), Utah (Abortion Prohibition), Virginia (HB 1316), and Wisconsin.

Whose Kid is it Anyway? Or: Should Sperm Donors have Parental Rights?

Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)

California is considering redefining sperm donors’ legal rights in the wake of Jason Patric’s custody battle with his ex-girlfriend over a child they supposedly agreed would have no relationship with Patric once born. Now, however, Patric claims to have a “loving” relationship with the child and is demanding protection from what he sees as the mother’s unilateral power to decide whether he – stipulated a mere sperm donor – should have any legal ties to her son. If the child had been conceived without the utilization of assisted reproductive technology, the landscape would be different – Patric would be presumed the “natural father” of a child that he received into his home and held out as his own, or over whom he and the child’s mother voluntarily declared his paternity. Either of these scenarios would come with the rights and responsibilities of parenthood. Because Patric’s child was conceived via in vitro fertilization, however, this sperm donor has found himself – I’m so, so sorry – in a sticky situation.

Sperm donors, whether making deposits at a bank or for in vitro use with women to whom they are not married, are presumed not to be the natural fathers of any resulting children – absent a specific agreement to the contrary. The reasons for this are clear enough. After all, isn’t the whole point of going to a sperm bank (or one of the points, at least) to ensure that a woman can take her reproductive destiny into her own hands, free from interference by any man who might want a say in the matter? Even when the donor is not anonymous – if you’ve visited a trusted friend rather than the teller window, so to speak – there is no automatic basis for parental rights arising out of the transaction. This preserves the integrity of a system designed to create the possibility of fatherless children – but why would anyone want that?

One reason has already been touched upon: women’s reproductive autonomy. Another obvious point is the protection of the donors themselves – how many men would volunteer their genetic material (in a situation where they were planning not to assume parenting roles) if they knew they would end up responsible for child support later on? The threat that a presumption of sperm donors’ parental rights would pose to both of these groups is clear. Luckily, that’s not quite what’s being proposed in SB 115 – what Patric (and the legislator responsible for the bill) wants is the opportunity to win a declaration of parental rights through a showing that he has actually sustained a parent-child relationship following the child’s birth. This, interestingly, would protect biological fathers from unwanted interference in their reproductive lives – leaving mothers who use donor sperm totally vulnerable. Even though not just any man could succeed on the claim that he had formed a parental relationship with the child, thereby affording mothers theoretical protection from unexpected bids for paternity, a woman who maintains a relationship with the donor – or allows her child to cultivate one – could find herself hauled into court.

Another group on whom the proposed policy could have an intrusive effect is same-sex parents. After all, second-parent adoption only works if there is, in fact, not already a second parent in the mix. Would the rights of a sperm donor supersede those of the mother’s committed partner? Should they? A different possibility altogether – one that it would probably be too optimistic to realistically hope for – is that a law like this could open the door for more than two parents to claim legal rights over a child: a mother, a sperm donor, and the m0ther’s partner. Although the law has historically not been friendly to polyamorous relationships, Senator Hill claims that his bill is about acknowledging the “modern family” and how different it looks today from what the old laws anticipated. California does tend to be at the vanguard of progressive social change, but given what seem to be the more likely implications of SB 115, I’m suspicious. The question that remains to be answered is this: could parental rights for sperm donors represent an exciting step toward embracing all configurations of families after all – or will it turn out to be a Trojan horse full of men’s rights activists?

If the latter proves true, all I can say is I’ll be switching to Durex whenever I need to prevent an unwanted custody battle.