Josie Sustaire, Resident Blogger (’14, University of Oregon School of Law)

Suppose a woman chooses to have a child.  Suppose that she elects also to raise the child after it’s born.  You may be thinking, “Great.  Good for her.”  But suppose that the woman also happens to be addicted to drugs.  Are you still excited for her?  Is she any less suitable to invoke her rights?  What should be done?  Legislators in Alabama have answered these questions by prosecuting women who expose their children to drugs while pregnant.  The Alabama statute, Ala.Code 1975 § 26-15-3.2, was originally put on the books to protect children from exposure to meth labs.  However, the law has been expanded through litigation to encompass fetal exposure to drugs in utero, essentially offering legislator’s a backhanded way of circumventing a woman’s rights.

“Laws concerning a pregnant woman’s treatment of her fetus are not without precedent,” Ada Calhoun points out in her New York Times article on the subject.  “Since abortion was legalized in 1973,” she says, “hundreds of women across the country have been arrested for harming their fetuses, with charges ranging from child endangerment to first-degree murder.  Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, a New York-based reproductive-justice group, predicts a grim future if laws like Alabama’s stay on the books.  “Everyone talks about the personhood of the fetus,” she remarks, “but what’s really at stake is the personhood of women.  It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.”

And, as if to add insult to injury, medical research has shown that quitting cold turkey while pregnant can be fatal to the fetus.  So, that same hypothetical pregnant woman who abuses drugs, if she has access to adequate medical care, may be told by a medical professional that she should not quit but rather should maintain acceptable levels to avoid miscarriage.  Given the research, maintaining low levels of the drugs in order to save the fetus seems much safer.  BUT if the state that the woman lives in has a law like Alabama, she will still face criminal charges once the baby is born and traces of drugs are found in the baby’s system.

There must be something we can do about this.  We must find a way to reconcile the rights of women with the interests of the state in ensuring the health and safety of infants.  Why does a woman’s rights have to be sacrificed?  How can Alabama legislators believe that two wrongs can make a right?  What we can be sure of is that Alabama has no plans of backing off.  Over 60 women have been incarcerated for child endangerment and the legislature has submitted proposed amendments to the statute to explicitly apply to in utero exposure.

Now don’t get me wrong.  I love the babies.  I want what is best for them.  But how can locking their mother up for 10 years (mandatory sentence in Alabama is 10 years to life) because she is a drug user be the best option?  Sure she should not have used drugs while pregnant, but hindsight’s 20-20 and what’s done is done.  What can we offer her moving forward?  Drug treatment options seem like a much more beneficial option.  I would also encourage changing regulation of methadone clinics due to the risk of methadone exposure to fetuses.  There may not be an easy solution, but we certainly can’t go on like this.

Note:  The Guttmacher Institute has a state policy pdf that states “No state specifically criminalizes drug use during pregnancy,” and I have submitted a request for clarification and am currently awaiting their response.

Ash Moore, Resident Blogger (’14, University of Oklahoma College of Law)

The recent tragedy in Newtown, Connecticut has created a lot of reactionary political push from the left for more gun control. I own multiple guns. I believe the second amendment is broad and sweeping. I believe it is one of the secured rights that makes this country unique and legally superior. However, I also think the implicit right to privacy in our Constitution that is necessary to fulfill the promises of the second amendment and others, is also an important secured right.

This right is what Roe v. Wade was based on. After the recent 40th anniversary and discussion about the ever-increasing restrictions and regulations, Newtown got me thinking. The right wing trusts every American who can walk and chew gum with guns. But they don’t trust an educated woman to make choices about her own body and family (including but not limited to abortion). On the other hand, the left wing wants the government to trust every American who can walk and chew gum with decisions about the most important building block of society, the family.

I remember coming to law school thinking of Justice Scalia as a cold-hearted, heinous Justice who sought to disenfranchise the American people (my parents are pretty liberal criminal defense attorneys). But the first case I read in law school had an opinion by Justice Scalia that I agreed with. I immediately called my mom in tears thinking something was wrong with me. She consoled me, but was obviously upset by the news. She asked me what the name of the case was and when I told her it was DC v. Heller, a gun rights case, she sighed some relief and said, “calm down, Idiot. That’s different.”

Before too long I realized she was right, but I still don’t understand why. Why is it encouraged for political parties and individuals to tailor their arguments to the outcome they want? Why is it encouraged for politicians to flip-flop their reasoning but not their outcomes? There is a lot I don’t understand in this world. I don’t know why they leave chip bags two-thirds empty or how they get those ships in those bottles. But I thought I understood the Constitution.

I know argument exists over the proper way to interpret the Constitution. But I didn’t know people reasoned backwards to get the result they wanted out of it. I believe the political parties should take a stance; you either trust the American people to make their own choices and properly exercise their rights, or you don’t. But you don’t get to pick and choose which rights they get control over. Whether the discussion is about gun or reproductive rights, the argument will always turn to the power over life and death. But I think all the mudslinging and buzzwords cloud the bare bones arguments. Probably intentionally.

The only thing better than being a Texan is being an American. There are a lot of things wrong with my state and my country. But as a patriot, it is my job to question when appropriate and defend when needed. I am a second class citizen in a lot of ways. But I believe in this country and in the people who make it up. That’s my stance. What’s yours? Do you trust me and others, or not?

Elisabeth Smith, Resident Blogger (’14, University of Washington School of Law)

On Saturday, February 2nd, my LSRJ chapter hosted a conference titled “Reproductive Justice: Meta Rights and Milestones.” In the process of organizing the conference, I’ve thought a lot about RJ’s meta rights: the right to have a child; the right not to have a child; and the right to parent the children you have with dignity, free from violence and oppression. Two recent news stories demonstrated how some people with privilege have attempted to limit those rights by ridiculously redefining them.

I’m sure you’ve all heard about the New Mexico GOP state representative, Cathrynn Brown, who introduced a bill last week that would bar abortions for rape victims. How you ask? Well, by making it a felony for women who become pregnant as the result of rape to have an abortion because an abortion is, by the bill’s definition, evidence tampering.

Yep.

When this story went viral, the esteemed representative released a mind-twister of a statement:“House Bill 206 was never intended to punish or criminalize rape victims. It’s intent was solely to deter rape and cases of incest. The rapist–not the victim– would be charged with tampering of evidence.”

So, the rapist whose assault “created” the evidence would also be charged with tampering with that evidence if his victim chose not to have a child? Hmmm. Try substituting another crime into this scenario if you want to really see how ridiculous it is.

Just over the border in Colorado, another story emerged. As a defense to a medical malpractice suit, lawyers for St. Thomas More hospital, a Catholic hospital in Cañon City, Colorado, argued that a fetus is not a person.  The hospital is run by Catholic Health Initiatives, a national chain that follows the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Part IV of the directives state “The Church’s defense of life encompasses the unborn and the care of women and their children during and after pregnancy. [at p23] Many people have crowed about the hypocrisy of championing the legal argument that a fetus is not a person while at the same time prohibiting abortion and contraception on the theory that life begins at conception.

In New Mexico, a fetus becomes evidence and at Catholic hospitals following the bishops’ directives, a fetus is a fetus in cases of medical malpractice, but not when someone would like access to contraceptives or abortion. In such cases, your ability to decide how and when to have a child or how to grieve for lives that you anticipated welcoming is interpreted through the prism of someone else’s ideology and whether its convenient for them to demonstrate some consistency.

Those who oppose the right to have an abortion need to demonstrate integrity to their position. Abortion is not felony “evidence tampering” and if life begins at conception, it does so even when money is at stake.

Elisabeth Smith, Resident Blogger (’14, University of Washington School of Law)

Thinking about Tuesday makes me a little nauseous.  We might reelect President Obama or be treated to another “what if” when he hosts Saturday Night Live in 2018. In Washington State, voters will approve or defeat Marriage Equality and legalize or continue to criminalize marijuana. Both Referendum 74 and Initiative 502 are reproductive justice issues that touch RJ’s meta rights (the right to parent; the right not to parent; and the right to parent the child you have with dignity and free from violence or oppression). Wednesday could be an incredible day or a really, really terrible one.  I certainly don’t want to sob my heart out like 2004.

Referendum 74

On Thursday night I attended a Referendum 74 debate between Jeff DeGroot, a 3L and comments editor of the University of Washington Law Review, and Joseph Backholm, chairman of Preserve Marriage Washington.  Jeff was raised in Oregon by two mothers and he made the point over and over again that his parents are like any other parents. In Jeff’s words, Mr. Backholm only offered distractions.  Let me give you a few: marriage equality means (1) parents cannot control their children’s public education; (2) business owners won’t be able to live out their beliefs; and (3) lesbians and gay men in Washington already have all the rights of associated with marriage via domestic partnerships. Jeff’s answers to those assertions were that education decisions are made on a local level with teachers, administrators, and parents; anti-discrimination statutes already prohibit discrimination based on sexual orientation; and the word marriage means more than domestic partnership ever could.

If it’s possible to qualify some of the things Mr. Backholm said as the worst, here’s what really made my blood boil: “for all 6,000 years of human history, marriage has been a union between one man and one woman;” “without fathers, children cannot survive and thrive and predictably end up in prison;” and “marriage equality will mean that men dressed as women can use women’s restrooms.” I would like to respond.

First, no. Marriage has looked very different at different times and in different places. Second, yes, fathers are important, but parenthood doesn’t require a penis. Heritage Foundation-inspired horror stories about single motherhood ignore the structural barriers that limit women’s pay and access to childcare. Patriarchy, racism, homophobia, and the criminalization of poverty all play their parts. Also, children raised by lesbian parents seem to fare really well. (Right Jeff?) Third, the rights of transgender people in Washington are protected by the state’s anti-discrimination laws: RCW 29.60.040.26.

Mr. Backholm gave us the kitchen sink argument, but the diversity of his distractions gives us a better vantage point from which to consider his opinion. Marriage equality is foremost about equality. Voting yes on Referendum 74 means that traditional parents like Jeff’s can get married, but it also means that gay men and lesbians who don’t look or act like them can also get married. While Mr. Backholm may consider himself to be better than LGBTQ individuals, their marriages would occupy the same societal position. Marriage equality would limit the privileges we afford to heterosexuals, fathers, gender-conforming, and discrimination. For people who have constructed their identities based on such privileges, the idea of equality must be deeply threatening.

Initiative 502

I-502 would allow people 21 and older to legally grow, sell, and buy marijuana. It has been endorsed by Legal Voice and Surge Northwest. Lillian Hewko, a Surge Northwest and an LSRJ board member, wrote about the need for 502, citing the destructive effects of drug laws on women and their children. Who’s using marijuana? In 2011, 7.8% of women 18 and older used marijuana. Who’s arrested and prosecuted for marijuana offenses though?  Predominantly people of color. Legalizing marijuana will halt Washington’s racialized arrests and prosecutions, thereby allowing families to remain intact and protecting women from the dangers of incarceration.

I voted for President Obama and for Referendum 74 and for Initiative 502. I’m hoping that on Tuesday Washington State announces to the world that equality trumps privilege.

Sara Taylor (’11, University of Michigan Law School)

*trigger warning for discussion of sexual assault

I managed to go to a bar the other weekend without being molested.  Pure luck, apparently.  I ran out to the grocery store late last night, too, and missed the unwanted groping.  I am having a great week!  Ooooh, maybe it’s because I was in loose-fitting pajamas, unwashed hair in a bun, glasses, slippers – on both occasions.  But what about the dozen or so years I, a woman, have been engaged in the risky behavior of going to bars and grocery stores?  What insight can I offer so other women can understand and possibly emulate my incredible assault-free hot streak?  Take it away, Judge Hatch!

Apparently, women who place themselves in vulnerable situations have a duty to be more vigilant to avoid becoming victims.

Several days ago, Arizona Superior Court Judge Hatch sentenced an ex-law enforcement officer who sexually assaulted a woman at a bar this past July.  After having a bit to drink, the then off-duty officer came up behind the woman, a friend of friends, put his hand up her skirt and fingered her.  He got tossed from the bar and the woman naturally participated in his subsequent prosecution (though let’s have a moment for her courage to do this, as it will become patently clear just how stacked the deck is against her).  Judge Hatch suspended jail time and sentenced him to probation, community service, treatment, and also decided this was the appropriate forum to admonish the victim for being a victim. Said Judge Hatch, “You learned a lesson about friendship and you learned a lesson about vulnerability” and “if you wouldn’t have been there that night, none of this would have happened to you.”

Well, I suppose that stands to reason, but how, exactly, does proximity become proximate cause?

Apparently, bad things can happen in bars. Even going to the grocery store after 10 p.m. can be dangerous for a woman.

Going forward, in furtherance of the common law, this is simply too vague.  I feel like I, too, must learn a lesson about friendship and vulnerability, even though I have narrowly escaped groping all these years.  If sexual assault survivors who venture out after dark and forget to leave their vaginas at home is a mitigating factor, what are the guidelines?  Any hemline limits?  Pants only?  What percentage of cleavage clears the threshold?  Can one be friends of friends of cops?  Have a drink?  Can a woman wield any sexual power at all, or would that be inciting dominance?  Let’s be clear, for heaven’s sake, this is a lesson.  What behavior needs to be demonstrated to believably point fingers at the fingerer?

Tell you what, I did learn something here.  The judge also provided some sage wisdom from her mother…when you blame others, you give up your power to change.

Well, your honor, mom was right.  When you blamed others, you gave up your power to change this tired, archaic, degrading narrative.   That duty of vigilance to avoid victimization was yours.

In the state with the highest infant mortality rates in the country, a star OB/GYN loses his position on the Mississippi state board of health because he is pro-choice.

Another double standard in support of Viagra by anti-choice legislators, and they’ve even got a catchphrase lined up: “Viagra, that wonderful drug that helps create life.”

In Texas, there is a legislative struggle to keep Planned Parenthood in the state’s Women’s Health Program, more on the current developments here.

A trans-gender woman of color is charged with second degree manslaughter after her attacker died in the physical altercation.

Blogger Shark-Fu weighs in on Missouri’s Don’t Say Gay house bill that could bar schools from discussing lgbt issues and also keep student orgs like the  Gay-Straight Alliance from being recognized.

“Have you heard of Chen Guangcheng?” a Chinese Human Rights attorney escapes from house arrest when imprisoned for his activism against forced abortions and sterilizations.

Tennessee abstinence-only bill shuns hand holding, as it is, wait for it, a gateway to sex.

Just for laughs, The Daily Show exposes the hypocrisy of personhood bills when the men’s right to masturbation is challenged.

Arizona faces 20 week abortion ban with just days to be vetoed.

Vanessa gives us our daily dose of intersection as she explains how Trans rights are reproductive rights.

After Trayvon Martin’s murder, Colorlines presents interesting myth busters on crime in Black America.

Burke Bindbeutel, University of Missouri School of Law

Last week, at a trial in a federal courthouse, I got to observe the effects of immigration policy on the human body’s dignity. If it does nothing else, reproductive justice limits what our government can force upon our bodies–the sources of our most fundamental autonomy. The people I saw in court came north to live by their sweat, and their bodily presence on this side of the Rio Grande was enough to have them rounded up and caged. Although it was chilling to witness the deprivation, I was heartened by the response of the court to the human need.

A fellow Mizzou law student and I dispatched to the borderlands during our spring break. In Del Rio, Texas we caught an episode of the fast-paced human drama known as Operation Streamline. Nine out of eleven Border Patrol sectors along the U.S.-Mexico border have opted to criminally prosecute unlawful migrants. Instead of the consequence-free administrative process favored by California, where Mexican migrants are released at the border, Streamline ensures a criminal record for the migrants. If they attempt to return to the United States, their offense could land them two years in jail.

Sixty-two defendants pled guilty and were sentenced in less than an hour. Just as the blisteringly fast proceeding ended, the prisoners complained that they had not received clean clothes or showers during their five-day incarceration. Inadequate hygienic services probably did not outrage the prisoners. They had already endured a difficult journey, some of them from as far as El Salvador. If clandestine train-hopping across a war zone didn’t deter them, then they probably don’t mind going without soap. But it’s incumbent on the judicial system that removes people en masse to provide basic dignities, which are just as necessary due process of law.

I thought of our work with LSRJ when one of the two women being sentenced told the judge that she needed to tomar pastillas para mi embarazo. The girl couldn’t have weighed ninety pounds. She was sitting out in the public benches due to space constraints, and from where I was sitting I couldn’t see her shackles, so I thought she was there to watch, like I was. But she was a pregnant border-crosser who had politely asked for pills to relieve morning sickness. Pregnancy has always seemed an unimaginable servitude to me, and here was this woman, barely more than a girl, wading across the Rio Grande by moonlight and imagining a better home for her kid than war-torn Mexico.

Our constitution’s guarantee of birthright citizenship has been rebranded as a loophole for the offensively-coined “anchor babies.” Because people born on American soil are citizens regardless of their parents’ status, the anti-immigration lobby has detected an incentive for poor and pregnant people to decamp for their child’s birth.

It’s true that free trade policies combined with porous borders have encouraged mass migration. Perhaps if the United States were to curtail the opportunity for fresh arrivals to plant roots in our country, we could avoid having to deal with pregnant prisoners. Senator John Kyl advocates repeal of birthright citizenship. But I don’t think that would strike at the root of the problem of massive inequality in the border region. The border divides north from south, but it also divides rich and poor. Even if the U.S. won’t provide this woman a hospital bed, it ought to at least see that the basic needs of her body are attended to.

Concerns that so-called “aliens” have compromised hospital services are misplaced. In rural Texas, hospital care’s availability suffers from poor regulation and exploitative insurance companies. Blaming opportunists distracts from the systemic problems in our health system. It’s similar to those who blame the struggles of an unequal and financially strapped education system on a few freeloaders.

Reproductive justice will exist when people can “decide whether, when and how to have and parent children, with dignity, free from discrimination, coercion or violence.” It’s a sign of an unresponsive immigration policy when prospective mothers risk life and limb for a chance the chance to safely deliver. In Del Rio, the judge assured the prisoner that she would receive medical attention, but for the dozens more defendants on the next day’s Streamline docket, there are no guarantees.

Mallory Carlberg, University of Oklahoma College of Law

This blog is cross-posted from OK4RJ.

Yesterday, Lynn Paltrow of National Advocates for Pregnant Women and Julie Burkhart of Trust Women participated in “Pro-Life or Pro-Lives: What the Difference Means for Women and Families” at the OU College of Law. Both speakers focused on the possible consequences of criminalizing abortion and of the need for policies that value the lives of pregnant women and their families.

Julie Burkhart, a former colleague of the late Dr. Tiller, works in Wichita, Kansas, the home of  Operation Rescue. Wichita is  the largest city in Kansas and now has no abortion clinic thanks in no small part to the efforts of Operation Rescue (though Trust Women is opening a new clinic this year. Despite this, literally thousands of people seek abortion services in the state and must travel far to do so. Julie and her colleagues face unimaginable harassment, but Julie said she continues to work in Kansas because it is simply un-American that based on geography some people are not able to obtain reproductive health services. If Kansans go to such great lengths to obtain abortions, criminalizing abortion will not deter people from obtaining the procedure. Anti-choicers swear that criminalizing abortion will mean punishment for doctors not patients, but we need to be wary of giving the State power to interfere into the decisions we make about our bodies. Once the State is given a little power, we cannot be sure how far and in what direction state policies will take it.

Lynn Paltrow highlighted the danger of giving the State this power. She spoke of several instances of courts using fetal rights claims to violate a pregnant woman’s right to medical decision making, right to due process of law, right to liberty, and right to life. For example, Laura Pemberton was attempting to have a home birth when a sheriff knocked on her door. Doctors at a hospital had used fetal rights arguments to get a court order to force her to have cesarean surgery. She was taken into custody, restrained while in active labor, judged without representation and forced to undergo the surgery. Other examples include Amber Marlowe and Angela Carder who were also forced to have court-ordered cesarean sections without due process of law. In every case, the judge determined that a state interest in fetal life trumped the rights of the pregnant person. Many fetal rights claims originated in state feticide laws that were meant to protect the pregnant person but are now being used to harm them.

I was so glad that OU LSRJ was able to take part in bringing conversations about the potential for State abuse to the law school. Unfortunately, the student population at most law schools is still overwhelmingly white and middle to upper class. For most, privilege allows us to ignore the ways state policies like the drug war are being used in a racist and classist manner to target certain populations for control. We are more likely to trust state actors because our experiences with police and judges are often positive. It is critically important that we be exposed to discussions on ways State power can be used to oppress not protect people since we are the next generation of policy makers. It is unlikely that many law students will ever experience this oppression firsthand, but it is a reality for countless people in this country. Ignoring this reality perpetuates an unjust judicial system – an unjust judicial system that, as last night’s talk and the recent push for personhood amendments across the nation show, has the potential to be used to strip anyone of their status as a full Constitutional person upon becoming pregnant.

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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