For those law students who have already fallen into the yearly law school abyss, I have some news from my homeland you might have missed: sex work has basically been decriminalized in Ontario. The jist of it is that on Tuesday September 28, Ontario Superior Court Justice Susan Himel struck down three laws that criminalized actions surrounding the sex trade: communicating for the purposes of prostitution, living off the avails of prostitution, and operating a common bawdy house (prior to this decision prostitution was NOT illegal in Canada, only the laws surrounding it were). The rhetoric in the decision is truly unprecedented. Justice Himel recognizes and gives legal value to the protection and safety of sex workers: “By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance,” she said. “I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.”

It is essential that law students committed to reproductive justice in Canada, the U.S., and around the world take note of this decision for many reasons some of which, but MOST definitely not all, I will mention here. (more…)

The first time I answered the question, “Nice to meet you. What do you do?” with the complete, whole truth I found it hard to breathe. I waited to see the faces change, the hand pull away. That was because, until that moment, when I first met people, I never revealed my full job description. To my relief, no one attacked me, judged me, or even looked at me strangely. I didn’t lie, but I definitely had perfected a watered down, vague answer, a safe answer, to that dreaded question. However this time, taking a deep breath, I declared proudly, “I work in women’s reproductive healthcare. I am a business manager for offices that provide reproductive health care and we specialize in abortion care.” Huge sigh of relief.

Why I couldn’t just say this from the beginning was something that I had reflected on constantly since my job had transformed into a career. I was certainly not embarrassed about what I had chosen to do every day for a living. In fact, in direct contrast, I was (and am) proud to put my values in action working in a field about which I care deeply and for a cause I believe in, heart and soul. However, my beliefs regarding women’s healthcare did not form based on the field I work in, but rather from where I grew up.

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I have been interning at LSRJ for over a month now, and it has been a great learning experience, even though much of what I have learned makes me simultaneously sick to my stomach and incredulous that such egregious violations of human rights can still go on in this day and age. I attended LSRJ’s first Summer Networking Lunch last week at Legal Services for Prisoners with Children (LSPC), a legal services and advocacy organization that, as the name implies, works with incarcerated parents, with an emphasis on prisoners from Communities of Color and low-income communities. Most of us are aware that in the U.S., incarceration disproportionately impacts People of Color, the poor, and other marginalized populations. However, it was not until this Networking Lunch that I began to more fully realize that the harms done by incarceration unjustly impacts, not just the individuals who are imprisoned – many of whom are sentenced for non-violent drug offenses – but also their families and communities. Those sentenced to prison are taken well outside of their communities – presumably to take them away from the “influences” that made them turn to crime in the first place – where they are separated from their loved ones and are unable to maintain ties to their community that, if preserved, would perhaps make reintegration into society much more successful. This is especially hard for prisoners with children; even though a great many of those incarcerated are imprisoned for non-violent drug offenses, incarcerated parents are regularly disallowed from even basic physical contact with their children for more than a year. They also have very little time to even see their children, as those looking after their kids must take time off of work and expend resources they probably don’t have to bring the children to the prison, where there is no real place for kids to be comfortably. Families, and therefore the community at large, are further ripped apart if family members of prisoners (often grandparents of those incarcerated) who are perfectly able and willing to take care of these kids are disallowed from doing so because of laws that restrict the placement of children with ex-felons – even if the felonies were for crimes completely unrelated to children and were non-violent and occurred many years ago. Though it might seem reasonable at first to disallow placement of children with felons, in many cases, it seems that placing children with family members who love them and their incarcerated parents, who will work to keep the family together and who are invested in the success of these kids, is much better than taking children completely out of their community and placing them in homes at great distance from all of their social ties, and often into communities that in no way resemble the ones from which they came. In this way, many communities not only lose members due to incarceration, but also lose a lot of bright kids due to the repercussions of the incarceration of their parents – and this loss of human capital is often permanent.

-Tina Sinha

Drug policy has benefited from the harm reduction movement’s innovative approach to improving personal safety.  The application of a harm reduction model to reproductive justice has the potential to transform the way we view reproductive justice issues and mobilize support for issues that are traditionally marginalized within the movement.  I want to consider what we can learn from the harm reduction movement in advocating for sex workers’ rights and comprehensive sex education.

Harm reduction is a public health philosophy that emphasizes individual safety, regardless of lifestyle choices, over prohibition.  This approach acknowledges that some individuals may continue to engage in risky behaviors and aims to address the needs created by those behaviors.  The harm reduction movement spearheaded efforts to improve safety and provide services to substance abusers, such as safer injection sites for heroin addicts—the theory being that if addicts were going to use, at least providing them with clean needles would benefit the addicts themselves as well as the overall public health.  Because harm reduction focuses on social and environmental aspects of risky behavior, its application to sex work is intuitive.  

Sex workers face violations of basic human rights on a daily basis, including violence at the hands of clients as well as police brutality.  Additionally, many sex workers must cope with homelessness, substance dependency, and extreme poverty and desperation.  Because street-based sex workers are predominantly indigent women of color, selective law enforcement practices disproportionately target poor, minority women.

Sex workers are isolated from health care services because of fear of arrest and prosecution, as well as the increasingly inaccessible cost of such care.  Street-based sex workers in particular face health risks that the average worker does not, such as violence (perpetrated by police and clients), exposure to sexually transmitted infections and HIV/AIDS, and exposure to the elements.  When sex workers do access health care services, it is generally because of an emergency; thus, lack of access to preventative services is a serious health concern for sex workers.

In the context of providing services and outreach to sex workers, then, an application of the harm reduction model must take into account how various and overlapping forms of oppression create unique challenges for sex workers:  namely, substance abuse problems and lack of resources to access health care.  Services should include the provision of safer sex kits to sex workers and training in condom-negotiation skills, as well as free and confidential STD testing and information about HIV/AIDS.  Holistic services should also embrace substance abuse counseling and clean needles for drug use and hormone injections for transgendered sex workers who utilize hormone therapy.  Programs that collaborate across disciplines would address sex workers’ needs the most effectively by tackling substance abuse, safe housing, domestic violence, and health care.

So, why is this an issue of reproductive justice? First, this approach recognizes that sex workers are often in the industry for reasons beyond their control, such as economic hardship or inability to enter or reenter the workforce due to lack of recognized work experience or a criminal record.  In this respect, this acknowledgement of the multiplicities of oppression reflects the values of the reproductive justice movement—harm reduction recognizes that the decision to enter or remain in the sex industry can be (but is not always) a result of economic, racial, and gender injustice.  Accordingly, rather than criminalize, patronize or demonize sex workers, harm reduction seeks to provide safer options for those who choose to continue in the sex industry.  And, because a harm reduction approach ascribes no moral judgment to the activities of others, the traditional hierarchy assumed by service provision is disrupted.  Significantly, this challenges the notion that those in positions of power “know best” while empowering sex workers to make the healthiest choice possible for themselves under their individual circumstances.  This approach also empowers sex workers to use contraceptives and educate themselves on sexual health issues.  Importantly, then, application of the harm reduction model does not demean the work that sex workers do because it both identifies the intersection of race, class, and gender-based oppression that often create the need to continue working in the sex industry and recognizes that some sex workers remain in the industry by choice.

I already blogged about abstinence-only education, but I think it’s important to consider sex ed in light of harm reduction as well.  The philosophies which underlie harm reduction call for the elimination of funding for abstinence-only education in schools and implementation of comprehensive, sex-positive sex ed.  Abstinence-only education does not actually result in teens abstaining from sex, and instead denies them critical information about sexually transmitted diseases, pregnancy prevention, and, yes—sexuality itself. 

Harm reduction acknowledges that people—and, in this case, young people—make choices that may put their health or well-being at risk, and seeks to provide information to most safely make those choices rather than administer judgment or condescension.  Like the earliest manifestations of the harm reduction movement—safer injection sites combined with resources and support for substance abusers who were trying to stop using drugs—comprehensive sex education presents young people with information and options.  And, like its predecessors in the movement, this information is health- and life-saving.  For teens who are having sex or are going to have sex, comprehensive sex education equips them with the tools and information they need to make that decision in a way that protects them from diseases and unwanted pregnancies as well as providing them with a healthy outlook on sexuality. 

Reproductive justice posits that all people have a right to information required to attain sexual and reproductive self-determination.  Providing students with comprehensive sex education reflects the principles that motivate the harm reduction movement, and as such gives students the tools they need to make healthy decisions about their bodies, their relationships, and their futures.

-Amanda Allen

When I tell people that I am interested in both criminal justice and reproductive justice, they often look at me askance, or raise their eyebrows.  Don’t these two fields clash a lot, they ask? Well, yes, in some ways. But women’s health advocates and prison reform activists have more in common than many might think. Beyond the fact that there are more women in prison than ever before because women’s incarceration rates have skyrocketed since the beginning of the so-called “war on drugs,” women’s lives are effected by high prison rates in multiple other ways. Feministing‘s Samhita draws the connections in her most recent (and last) post on the Nation’s Passing Through.  One reason, she says, that the women’s health and anti-incarceration movements need to start talking to each other is that women’s STD rates are exponentially higher in communities that have the highest incarceration rates, even in women who are not engaging in so-called risky behavior. A recent Washington Post Op-Ed has more:

One obvious reason is that conversations about sexual behavior, race and sexually transmitted infections remain taboo. Another is that the incidence of many STDs, particularly HIV, is concentrated in poor, segregated neighborhoods that are characterized by high rates of incarceration. Inner-city populations of African Americans and Latinos account for almost two-thirds of the 2.2 million Americans in prison nationwide, and two disturbing trends are increasingly present in these communities.  

One is the shift in the patterns of marriage and courtship that result when so many men are removed from a community. The other is an increase in the number of “multiple concurrent sexual partnerships,” in which individuals are engaged in sexual relationships with more than one person at a time. In many communities, when one sexual partner is imprisoned, the person left behind chooses another partner. When widespread, this behavior creates an efficient, effective pattern for introducing and maintaining an STD through a network of sexual relationships. 

As the Op-Ed, written by two public health academics, later notes, we as a society ignore the fallout of our addiction to incarceration at the peril of our health — and particularly of women’s health.  But the op-ed gets something seriously wrong:  it suggests that we can place blame for the high rates of HIV and other STDs at the feet of the women left behind when their men are dragged off to jail. We shouldn’t be placing blame on the community at all. And as Samhita rightly notes, it’s not quite so simple:

High rates of incarceration has such deleterious side effects that we have only begun to understand. Beyond dismantling and shaming entire communities, the onslaught of emasculating practices via police has created greater threats to masculinity, which backfire in the form of unsafe sexual practices, multiple partners and in its extreme form, rape.  

It may be true that, as some claim, the feminist/women’s health movement fanned the flames of the incarceration fury — particularly in the 1990s with the push toward victim’s rights. But it’s time to move beyond the divisive past and start to work from our commonality — that women and men, both inside and outside the prison walls, deserve better. 

Some days, I wonder whether certain prosecutors learned about a little thing called legislative intent when they were in law school. The reason I’m wondering this today is this: in Alabama, a prosecutor is charging a woman who is addicted to methamphetamine and who was unable to kick her addiction during her pregnancy with “chemical endangerment,” a new offense created in 2006 to protect children who live in homes where methamphetamine is produced. The law was envisioned as providing a tool with which to remove kids from homes where parents were producing meth.Operating on the theory that a fetus is a child, and paying no mind to the legislative intent motivating the law, the county prosecutor has used it to charge several women whose infants test positive for meth immediately after birth.  The prosecutor tries to sell the law as being about insuring maternal and fetal health:

 ”We are doing this for the sole purpose of trying to make sure both the mother and the child have a healthy pregnancy,” he said.  ”We’re not trying to throw these women in jail. That’s absolutely not the goal of it.” 

Putting aside for a moment the fact that he is in fact throwing women in jail, this statement is totally wrongheaded.  Expert after expert has asserted and article after article has shown that jailing pregnant women and new moms who struggle with addiction does not ensure healthy pregnancies — in fact, it has just the opposite effect.  Prosecutions like this one drive pregnant women away from seeking the prenatal care that is so vital to their health and that of their fetuses.  Feminist Law Profs has a laundry list of just some of the negative consequences of these prosecutions:

They deter women from getting drug treatment; they restrict reproductive freedom by incentivizing abortion; they are inevitably selectively enforced against the poor and minority; they remove the focus from the very real problem of lack of prenatal care for poor pregnant women; they take the attention off proven risks to fetuses such as fetal alcohol syndrome and tobacco use during pregnancy; they put hospitals and medical care providers in an adversarial relationship with their patients; they lead to absurd results, such as prosecuting women for not getting prenatal care or having a miscarriage; and so forth.

And yet, the prosecutions continue. Despite the fact that drug treatment programs are less expensive than incarceration and are more effective and ensuring healthy pregnancies and helping women get off drugs, treatment continues to be offered very little and funded even less. In some states, there is not a single drug treatment program that is aimed at or has space for a pregnant woman or mother and children. Given all these facts, the Alabama prosecutor’s pledge of purpose becomes even more laughable. The facts are out there to prove that his prosecutions are counterproductive. But at least the healthy child routine provides a good facade to mask the other, less socially acceptable, purposes of these prosecutions.  If this prosecutor (or the others out there pushing punishment on pregnant women and mothers) really cared about making sure pregnancies resulted in healthy births, they’d have halted the prosecutions yesterday.  

Earlier this week, the Eighth Circuit Court of Appeals heard oral arguments on a case out of Missouri about the right of pregnant women who are incarcerated to be transported to secure an abortion.  Here’s some background on the case, via Rachel Roth at RH Reality Check:

The case arose when a young woman beginning a four-year sentence in Missouri was told she could not have an abortion. This represented a change in policy for the prison; in the past, women who could come up with the money were taken to a clinic for abortion care. Then in 2005, with a new anti-choice governor in office, the prison administration and the Department of Corrections reversed course, adopting a policy that categorically denies women access to abortion.

After weeks of being rebuffed by prison officials, “Jane Roe” wrote to the ACLU and eventually sued the prison. The court’s decision in her favor was straightforward, because the Supreme Court has been very clear that while states can enact policies to make getting an abortion more difficult, they cannot ban abortion altogether, as the Missouri prison had done. The Supreme Court has also made it clear that people do not automatically lose all of their constitutional rights when they cross the prison threshold. Jails and prisons must have a legitimate, prison-related reason for restricting such rights, and forcing women to bear children does not further any legitimate goal related to prison administration or crime control. Calling the decision an offense to its values, the Missouri government has asked the court of appeals to reinstate its unconstitutional policy.

It’s a funny thing when a state argues that a woman should lose her constitutionally protected right to abortion when she is incarcerated. While it’s true that people who are in jail in the U.S. do lose many rights that are ancillary to liberty, they retain the rights guaranteed them by the Constitution. This is clear in the realms of the First Amendment and the Eighth Amendment, for example (though the Supreme Court yesterday declined t0 hear a case about the censorship of outgoing inmate mail). While there are sometimes legit penological considerations that allow the government to restrict a constitutional right more than might be possible for the general public, that logic doesn’t fly here:  the state prison system regularly transports women over three hours away for a cosmetology exam.  This case is not about making the prison system run more smoothly; it’s about picking on the most vulnerable women in society in an attempt to further restrict the abortion rights of all.  Let’s hope the Eighth Circuit upholds the lower court’s decision and reminds the states that people who are incarcerated retain all of the constitutional rights they had before entering prison, including those related to their reproductive health.