Special Prosecution of Women Who Use Drugs During Pregnancy Or … Happy One Month Anniversary Tennessee SB 1391 – and Here I Forgot to Get You a Gift.

Gavin Barney, LSRJ Summer Intern (’16, University of California, Berkeley School of Law)

The start of August marked a somewhat ignominious one month anniversary this year: a short thirty-one days earlier Tennessee became the first state in the union to specifically criminalize drug use during pregnancy. On July 1st, the state enacted SB 1391, which enables prosecutors to bring assault charges on the behalf of a fetus against women who use narcotics while pregnant.  Just over a week later, 26-year-old Mallory Loyola became the first target of the law.

In a twisted kind of way, Tennessee’s approach to criminalizing pregnant women is almost refreshing.  The Volunteer State is by no means the only state to treat drug using and drug addicted pregnant women with prison sentences and loss of parental rights instead of … well … treatment. Not by a long shot. Other states prosecute pregnant women at high levels with three main methods: child abuse and endangerment laws, laws prohibiting delivery of illegal drugs to minors, and fetal murder/manslaughter statutes.

Alabama prosecutes pregnant women in a particularly roundabout and unnerving method. Since 2006, Alabama has arrested at least 100 pregnant women for the crime of “exposing their child to a meth lab” using a chemical endangerment law designed to prosecute people who bring children to dangerous locations. To make matters worse, the Alabama Supreme Court deemed it necessary to affirm this usage of the chemical endangerment laws in back to back years – holding in 2014 that the statute’s use of the word “child” “plainly and unambiguously includes unborn children.”

Medical and public health organization such as the American Medical Association (AMA) and the American Academy of Pediatrics (AAP) have criticized these punitive practices for putting both mothers and fetuses at risk by discouraging women from seeking prenatal care for fear of being turned in.* Additionally, the American College of Obstetricians and Gynecologists (ACOG) has stressed that treatment, not incarceration, must be the approach to these cases.

However, at a broader level, policies like those in Tennessee and Alabama are most horrifying and destructive because they answer the question “are pregnant women still people with full rights?” with an emphatic “hell no they’re not!” Like other personhood-type policies, special criminal prosecutions pits pregnant drug using and addicted women in conflict with their fetus, putting the full force of the law on the fetus’s side (or at least against the woman).

For more information on criminalization of pregnant women, check out LSRJ’s fact sheet on “Regulation of Pregnant Women,” and for LSRJ chapters interested in hosting an event on the issue, LSRJ is releasing an Event Toolkit on Criminalization of Pregnancy and Shackling of Incarnated Pregnant Women.

*Note that fifteen states require health care providers to report suspected drug use during pregnancy.

WHPA Revives Debate over Abortion Restrictions at Senate Judiciary Committee Hearing

Rhiannon DiClemente, Guest Blogger (’16, Temple University Beasley School of Law)

Early Thursday morning on July 15, 2014, the Senate halls were bustling with interns, staff members, and local advocates eager to witness the Senate Judiciary Committee hearing on S. 1696, also known as the Women’s Health Protection Act of 2013 (WHPA). Attendees, who managed to overflow the room, patiently awaited testimony provided by members of Congress, doctors, and activists, both for and against the bill. In light of the decisions in Hobby Lobby and McCullen, it was reassuring to see politicians taking a long over-due stand to protect a woman’s constitutional right to determine whether and when to bear a child or end a pregnancy.

The bill, sponsored by Sen. Richard Blumenthal (D-CT), addresses medically unnecessary state restrictions claimed to “protect” women’s health. It requires that state legislators prove state laws restricting abortion are in fact medically necessary, rather than politically or ideologically motivated. It also requires that states regulate abortion providers in exactly the same way they do other clinics and doctors who provide comparable services. The bill has its shortcomings, such as failing to address clinic violence, insurance prohibitions, and parental consent laws, as a March 2014 blog post highlights. However, it is an important step forward in combatting laws that have a disparate impact on low-income women, immigrant women, LGBT persons, and women of color.

Why is this bill important? As a LSRJ chapter leader at Temple University School of Law and a summer legal intern at the Center for Health and Gender Equity (CHANGE), I know that despite the fact that we have Roe , the web of state restrictions has decimated abortion access. In states like Louisiana, Texas, and Mississippi, the situation is dire. In 2012, the Mississippi legislature passed HB 1390, mandating that any physician performing abortions in the state have admitting privileges at an area hospital (an unnecessary practice). During the Senate committee hearing, Dr. Willie Parker, a board-certified OB/GYN and the last physician providing abortion care in Mississippi, testified that despite 13 attempts to gain admitting privileges at regional hospitals, not one of his requests has been granted. This is just one example of how seemingly ‘safety-oriented’ legislation is really aimed to shut down clinics and restrict abortion access.

At the hearing, Rep. Janet Chu (D-CA27) testified that between 2011 and 2013, states passed over 200 restrictions blocking access to abortion services. This translates to more restrictions on women’s health care in three years than in the entire preceding decade. Sen. Tammy Baldwin (D-WI) highlighted that these restrictions have forced women to travel greater distances and endure longer wait times to obtain an abortion. “The effect of these laws is that a woman’s constitutional right now depends on her zip code,” stated Rep. Chu, “We need laws that put women’s health and safety first – not politics.”

By speaking out against arbitrary restrictions that do not reflect medical best practice standards, supporters of S. 1696 have declared their respect for the constitutional right to access abortion services and trust in a woman’s ability to make the best choices for her own health and life.

Full testimony can be found here.

Pregnant in a War Zone

Sasha Young, LSRJ Summer Intern (’16, Northwestern School of Law)

A couple of years ago a dear friend of mine had her dream wedding “back home” in Palestine. She’s now battling the Atlanta heat through her first pregnancy, and with the recent surge in violence in the Occupied Territories, I thought for the first time what it would have been like for her to be pregnant “back home.”  The Occupied Palestinian Territories are fraught with human rights situations. I’ve thought about many of the different aspects before, but before I imagined my friend, I had never really taken a reproductive justice lens to the conflict. Immediately, my mind jumped from sexual assault, to access to abortion services, to getting maternity care in a place where sanitary napkins were only recently removed from the list of blockaded items.

The implications for pregnant women are predictably scary. An investigation into the 2008-2009 siege in Gaza revealed horrifying stories of women walking for miles through heavy shelling to find safe places to deliver. Hospitals prioritize the injured, travel is nearly impossible, and physicians are overwhelmed by trauma injuries. One woman, Dalal, recounted her doctor shouting at her for putting the ambulance driver’s life at risk when she should have delivered at home. Another woman, Rula, recounted walking alone for more than an hour in active labor only to be turned away from the hospital because there were too many injured people and not enough staff. Another report found that between 2000 and 2007, ten per cent of pregnant Palestinian women in the Occupied Territories were forced to give birth while stopped at Israeli checkpoints. Of the 69 documented births, 35 babies and 5 mothers died.

Obviously Occupied Palestine is not the only place where women are pregnant and give birth under violent and dangerous conditions. Stories like these are undoubtedly repeated throughout Syria, Congo, Timor, and every conflict zone in between. The immediate trauma of violent conflict leaves practically everything else as “collateral damage” of war, but I suppose this is just a little known bullet point on a long list of reasons we need a sustainable solution to the conflict in Israel and Palestine.

Mirena IUD Litigation, Misinformation, and a Few Thoughts on Informed Choice

Gavin Barney, LSRJ Summer Intern (’16, University of California, Berkeley School of Law)

According to a recent commentary in the Association of Reproductive Health Professionals (ARHP) peer reviewed journal, Contraception, reproductive health care clinics are currently witnessing a notable upswing in the number of patients requesting the removal of their Mirena IUDs. Mirena is a hormonal intrauterine system that prevents pregnancy for around five years through the release of levonorgestrel. And like other types of IUDs and long-term birth control, Mirena is very popular among the public health community: the ARHP refers to the device as safe and effective a number of times throughout the commentary. However, many women are choosing to have their IUDs removed and report being frightened by prevalent online and television publicity of common and devastating side-effects, including migration, perforation, and infertility. The problem, explains ARHP, is that these side-effect are not common, and some of them are actually fake – or “medically implausible” as the article puts it.

The supposed dangers of the Mirena device have made their way into the public consciousness as the result of solicitations for plaintiffs in mass litigation against the device’s manufacturer Bayer. This all initially passed me by, but after researching for this blog post I can report back that there is a lot of if-you-or-a-loved-one-has-been… out there. Mirena, like any other form of birth control, has potential risks, but as a result of media and advertising coverage these risks appear hugely magnified. ARHP contends that this hurts women in two ways: 1) by decreasing the number of women using long lasting birth control, and 2) by deterring contraceptive development by threatening that future technology will be met with similar litigation – note that from the 1970s to the 1980s, the number of companies pursuing contraceptive research fell from 13 to 1.*

For me, the most significant impact that misinformation around the Mirena device causes is not a reduction in the overall number of women using long term contraception. Rather, I am most concerned that opportunistic Mirena litigation and junk science could dissuade women from pursuing or keeping a birth control method that they would otherwise have chosen. IUDs do have some common side-effects – especially immediately following insertion – that can range from unpleasant to awful, so there are entirely legitimate reasons to remove the device early. But for those who actually do want to use and keep an IUD, misinformation can be tantamount to manipulation. Therefore, the central question the ARHP article raises is: what does informed and dignified decision making actually look like when we are so often bombarded with misinformation?

A quick search of the word “Mirena” shows just how murky the waters are when it comes to information on this IUD. Case in point: the first search result on Google, after Mirena’s official website, is DrugWatch.com, which describes a terrifying and “frequently encountered complication,” called “migration,” in which the IUD perforates the uterus and enters the body cavity, causing pain, infection, and damage to nearby organs. The ARHP article, on the other hand, scathingly refers to this problem as “fictitious.” Another site, in its review of the truth behind Mirena lawsuit ads, refers to migration as “so rare that even with tens of millions of women using IUDs worldwide, we can’t estimate how often it happens.”

I can easily envision a situation where a woman may encounter that first explanation of migration and immediately visit her doctor to have her IUD removed. Should the doctor simply dismiss her concerns out of hand because she knows that they are unfounded? Or should the doctor obey her patient’s wishes with the knowledge that she may have been manipulated into removing a device she actually wanted? The answer, as answers so often do, falls somewhere in the middle. LSRJ’s definition of reproductive justice holds that people must be able to “exercise the rights and access the resources they need to thrive and to decide whether, when, and how to have and parent children with dignity…” Here, my hypothetical patient has the right to access the resources she actually wants and needs, so it is her doctor’s responsibility to explain the true nature of the risks and dispel the misinformation. Then, should the patient still decide that the risk is too great, that choice should be met with the same degree of respect. Of course this all relies on the doctors themselves being entirely up on the most recent data about the device they are inserting/ removing and that they themselves are not intent on spreading misinformation.  So… fingers crossed on that one.

*From the ARHP article, this appears to have resulted from the litigation concerning the Dalkon shield. I do not think the writer intended to suggest that that was a case of junk science or junk law. I certainly don’t suggest that.

The Changing Abortion Conversation in Latin America and the Caribbean

Sasha Young, LSRJ Summer Intern (’16, Northwestern School of Law)

I recently saw a film that caught me by surprise, “La Espera” (released in the States as images“Expecting”) by Chilean filmmaker Francisca Fuenzalida. The film is devoted to one night, when Natalia and Rodrigo, a teenage couple from Santiago, self-induce an abortion with Misoprostol. The film was released in 2011 to critical praise for great filmmaking and the courage to tackle the subject of abortion in a country with one of the strictest abortion bans in the world.

Earlier this year I traveled to Chile, the skinny country that lines the western coast of South America, with a bit of angst over what I would find. I wondered what a country that in the last 50 years had a socialist president, a revolution, and a dictator [who, despite his human rights violations, brought incredible economic development and one of the most oppressive abortion laws in the world] would actually look like. I’d heard stories from friends about their own botched Misoprostol abortions, and I’d read about little Belén, the 11-year-old girl who was raped by her mother’s partner and then praised by the former president for deciding to continue her pregnancy. What I found was a country where, although it’s not uncommon to see hormonal teens passionately rolling around the manicured lawns of el Cerro Santa Lucía or see street art cursing the bourgeoisie, the conversation about abortion is hard to find.

I worked in an abortion clinic in Bogotá, lived beside an abortion clinic in Mexico City, and marched to stop restrictions on reproductive rights in Atlanta. I’m from a little island where abortion is still illegal, but even there in Aruba, the conversation of abortion happens. So I was really excited a few weeks ago to hear a debate happening around new Chilean president Michelle Bachelet’s plans to introduce therapeutic abortion exceptions to Chile’s abortion law later this year. The controversial president is a physician by profession, a single mother of three children, and possibly made of steel considering the political risk she’s taking with this new initiative. Abortion is a controversial topic, but in a region with one of the highest rates of teenage pregnancy, where bad abortions are the leading killer of young women, and where criminal penalties for abortion disproportionately affect poor women, we have to at least have a conversation about what reproductive justice in our region looks like.  The winds are changing throughout Latin America and the Caribbean, and having an open and honest conversation is the first step to achieving equal access to tools that help us decide when, how, why, and if we want to parent.

 

Reproductive Oppression Comes at a Cost, Literally

Grace Ramsay, LSRJ Summer Reproductive Rights Activist Service Corps (RRASC) Intern (’16, Smith College)

In 2010, I needed emergency contraception.  Asking my moms (yes, moms) for help was out of the question. So, I waited in the CVS parking lot while my 18 year old friend bought it for me because I was sixteen and Plan B was not yet over the counter. If my friend had said no, if I couldn’t afford the $50 upfront charge, or if I lived in a different state, there’s a good chance I wouldn’t have gotten the morning after pill at all.

Contraception access should not depend on your age, your provider or pharmacist’s religious beliefs, or the employer you work for. Naturally, I was dismayed to see the Supreme Court decision that allows corporations to refuse birth control coverage on religious grounds.  Justice Ruth Bader Ginsberg  reminds us that reproductive oppression comes at a cost, literally: “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.” 

My snarky feminist side can’t help but wonder, (as so many have already lamented,) how come Hobby Lobby still covers vasectomies and Viagra? And why are condoms are available at practically any store, to any age, but it took until last year to have OTC emergency contraception? Can it be as simple and paternalistic as men not wanting women to have control over their personal reproductive decisions? I’m trying to remain hopeful that the outpouring of negative response to the Hobby Lobby decision will translate into renewed activism for reproductive justice.  In the meantime, I have to keep remembering that progress does not move in a linear direction and we have to keep up the good fight.

Anti-shackling Laws and Fetal Rights – Finding the Common Ground

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

The “Birthing Justice” panel at the recent Civil Liberties and Public Policy Conference at Hampshire College celebrated Massachusetts’ recent success in passing an anti-shackling bill.  It also highlighted the dangers inherent in treating pregnant people differently from non-pregnant people. These two issues, at first seemingly at odds with each other, point to an important lesson for those pursuing the protection of pregnant people forced to give birth while in state or federal custody – as important as anti-shacking laws are, it is crucial that they be drafted using language that empowers the pregnant woman rather than in a way that protects the unborn fetus.

Fetal separateness laws ultimately convey legal rights upon the fetus, often from the moment of conception. As Lynn Paltrow, Executive Director and founder of National Advocates for Pregnant Women has explained, there is no way to grant rights to an egg, embryo, or fetus without diminishing the rights of the pregnant person. Over the last three decades, hundreds of women have been charged with crimes due to pregnancy related conduct and we have seen the application of existing criminal and civil child protection laws upon pregnant women in unprecedented ways.

For example, pregnant women who test positive for drugs have been charged with assault with a deadly weapon – the deadly weapon in these cases is the drug and the assault is the in-utero transmission of that drug from the woman to her fetus. Pregnant women have also been charged with contributing to the delinquency of a minor, unlawful child neglect, and child endangerment. Even women participating in government sponsored methadone programs have had their newborns taken away due to in-utero “abuse” when the baby tested positive for the drug. Certain conduct including attempted suicide as well as being HIV positive, has subjected pregnant women to charges of murder, feticide, and sentencing enhancement triggers. Late last month, Tennessee passed the nation’s furthest reaching law, a law that subjects any woman struggling with drug addiction to criminal prosecution based upon her pregnancy outcome.

The creative application of laws upon pregnant people is not only destructive to maintaining family unity but is also counterproductive in assisting with any mental health issues or drug addictions the pregnant person might have.  As Paltrow explained in a recent interview with NPR, “The biggest threats to life, born and unborn, do not come from mothers. They come from poverty, barriers to health care, persistent racism, environmental hazards and prosecutions like these that will frighten women away from getting help from the problems they do have.”

The shackling of pregnant, laboring, and post-natal inmates has been outlawed in eighteen states. When asked about Massachusetts’ pending legislation, Megan Amundson, executive director of NARAL Pro-Choice Massachusetts stated, “Shackling pregnant women is unsafe and inhumane, and it is shocking that this barbaric practice continues today.”  As prisoners rights advocates understand, shackling any human, pregnant or not, is inhumane and barbaric but while we wait for greater criminal justice reforms, we must remain vigilant.  As anti-shacking legislation continues to gain momentum, it is incumbent upon reproductive justice advocates to ensure that such laws are constructed carefully so as to protect women’s rights while avoiding language that would strengthen fetal separateness jurisprudence. For not only do fetal rights laws potentially curtail abortion rights by establishing dangerous precedent but they also create a maternal-fetal conflict by pitting the woman’s autonomy, right to privacy, and right to bodily integrity against those of her fetus.

Trans Sex Workers and Reproductive Justice

Candace Gibson, Resident Blogger (’12, University of Utah S.J. Quinney College of Law)

The reproductive justice and LGBTQ liberation movements share the values of bodily autonomy and sexual liberation and believe that all persons should have the resources they need to form the families they want.  However, many of these desires, including bodily autonomy, are often denied to trans persons, especially trans sex workers, many of whom are trans women of color. At a recent conference that I attended, Cyndee Clay, Executive Director of HIPS, painfully articulated the experiences of trans sex workers and their attempts to survive in our economy.  She had mentioned how trans sex workers not only faced violence from their clients but also from the police as they were arrested, how police officers often sexually harassed these individuals. In 2013, a D.C. police officer shot three transgender women in a car after one of the transwomen refused to provide sex for money.  Clay also discussed how often young trans persons were forced onto the streets because their families rejected who they were and that trans persons are excluded and erased from larger conversations on anti-trafficking efforts, unfortunately nothing new to many of us in different movements.

Clay’s comments remind me that we still live in a society hung up with gender, body parts, and the selling of sex.  Unfortunately, through our regulation and, in this case, criminalization of sexual desire for sale, we often harm and kill the most vulnerable without providing critical solutions and resources for those who are merely trying to survive.  Survival should not be the standard for some-we should all have the resources we need to thrive as persons and as members of our community.

Maybe, it’s time for the broader reproductive justice community to center the voices of sex workers, especially trans sex workers, in our conversations.  It may be hard at first but we have never shied away from a challenge.  

Support the HEAL Immigrant Women and Families Act!

This article was originally published by the National Center for Lesbian Rights.

Lauren Paulk is the Law Students for Reproductive Justice Fellow at the National Center for Lesbian Rights.

Though the Affordable Care Act (ACA) will go a long way toward ensuring access to quality healthcare for most LGBT individuals, many LGBT immigrants are still prohibited from obtaining the affordable health care they need. Despite being authorized to live and work in the United States, many immigrants—including LGBT immigrants—are ineligible for affordable health coverage and care through vital programs like Medicaid and the Children’s Health Insurance Program (CHIP).

Many immigrants are subject to a ban that makes them ineligible for federal Medicaid and CHIP for at least the first five years they are authorized to live and work in the United States, and other lawfully present immigrants who do not fall into an outdated and restrictive list of “qualified” immigrants are barred altogether. Since immigrants—particularly LGBT immigrants—are disproportionately low-income, it can be difficult or impossible to obtain the health care they need. That means five years without insurance coverage for critical and life-saving services, including pap smears, mammograms, HIV treatment, mental health care, or pediatric care for children.

Young people granted status through “Deferred Action for Childhood Arrivals” (DACA) are forced to wait even longer. DACA refers to a program enacted in 2012 that allows undocumented people ages 15-30 who arrived in the US as children (and who are currently in school or working) to remain here for renewable two-year periods. While they are considered lawfully present and are eligible to work and pay into public health benefits systems, they are prevented from accessing affordable care. Currently, people with DACA status are ineligible for federal Medicaid or CHIP coverage and the years they live in the United States with DACA status will not count toward the five years of lawful presence required before they become eligible. To add insult to injury, these young people are even ineligible to purchase private health insurance on the ACA exchange—with or without federal subsidies.

Many LGBT immigrants come to the US after fleeing interpersonal and state abuse based on their sexual orientation or gender identity. However, once they arrive, LGBT immigrants face a number of challenges to obtaining affordable and culturally competent health care. While the ACA will continue to combat the discrimination LGBT people face in the health care system due to lack of cultural competency, all of its positive effects are out of reach for LGBT immigrants because of gaps in coverage. The existing barriers to affordable health care disenfranchise hard-working LGBT immigrants who come to the United States to have a better life, only to encounter difficulty getting the care they need. Moreover, because LGBT immigrants are much less likely than non-immigrants to be able to access health care through their jobs, they are putting work into a system that does not support them.

However, new legislation introduced by Congresswoman Michelle Lujan Grisham would change these realities for good. The Health Equity and Access under the Law for Immigrant Women and Families Act of 2014 (“HEAL Immigrant Women and Families Act” for short) restores access to Medicaid and CHIP for immigrants authorized to live and work in the United States who are otherwise eligible. The bill also extends full participation in the ACA to young people granted status under DACA.

The HEAL Immigrant Women and Families Act is especially important for families. LGBT families are more likely to live in poverty than non-LGBT families, meaning health care on the private market is often out of reach. We know that LGBT people deserve the same access to health care as non-LGBT people, and this should include LGBT immigrants. The HEAL Immigrant Women and Families Act would bridge the gaps in the ACA, Medicaid, and CHIP by extending needed care options to immigrants, and in so doing, strengthen our workplace, our economy, and our communities. NCLR applauds Congresswoman Lujan Grisham for introducing the HEAL Immigrant Women and Families Act, and we encourage other members of Congress who support the LGBT community to stand beside her in expanding the health care options for many LGBT immigrants. Please show your support for the HEAL Immigrant Women and Families Act by signing this pledge, put together by the National Latina Institute for Reproductive Health. Please check out @NLIRH’s twitter timeline for more information on how this important bill will impact our communities!

#KeepItConfidential

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

Under a landmark California bill passed last year, individuals covered under another person’s insurance policy will soon be able to seek sensitive services such as birth control, STD tests, and mental health services, without worrying about the disclosure of these services to the policyholder. This person is usually a parent or spouse, a fact which often prevents people from using their insurance to get the medical care they need. Going into effect January 1, 2014, the Confidential Health Information Act (SB 138) closes a loophole in California law, where insurance plans unintentionally violate patients’ confidentiality by sending information about the services received home to the policyholder.

April is Sexual Assault Awareness Month, and is thus a particularly important time to be focusing on confidentiality of medical and mental health services. In addition to the common problem of young people heading to a free clinic for routine reproductive care and claiming no insurance (as many of my friends did instead of admitting to their parents that they needed care), this law will have a profound effect on survivors of sexual assault, domestic violence, and gender-based violence. Maintaining confidentiality is crucial for survivors of assault to feel comfortable and empowered to access the physical and psychological services they need, without fear of stigma, forced disclosure, or cruel yet common reactions, such as victim-blaming.

For this new law to have the wide-reaching impact advocates desire, we must create a smooth system for patients to request confidentiality, educate patients across the state that they have the option to request confidentiality, and train providers in how to effectively implement this system in service provision. The smoother the implementation of this bill, the more likely the new law will be used as a model for patient confidentiality of sensitive services around the nation.  I’m proud that California is making real strides to #keepitconfidential for all patients.