The Helms Amendment: Facepalm

Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)

Let’s talk about the late Senator Jesse Helms.  Senator Helms was the national treasure*who proposed at least ten constitutional amendments to ban abortion, voted against a Clinton nominee for assistant housing secretary “because she’s a damn lesbian,” who won reelection with racism, and who pulled a Todd Akin before it was cool when he “told an abortion-rights advocate that he would not allow an exception for rape in his antiabortion legislation because a rape victim could not become pregnant.”  He was basically your racist relative at Thanksgiving who talks about “feminazis.”

Enter the Foreign Assistance Act of 1961.  This act created and funded USAID, with the goal of promoting ‘social and economic development’ abroad.  When the Act was amended in 1973, Senator Helms’ amendment was included, which reads:  “No foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.”  Those of you playing along at home might be wondering what the issue is, since “family planning” is defined by the World Health Organization as including “use of contraceptive methods and the treatment of involuntary infertility.”  The most logical interpretation of the phrase is that it covers planning to prevent pregnancy in the first place.  After all, no one is advocating for abortion to be used as first-line contraception or for coerced abortions.  It turns out that the Foreign Assistance Act doesn’t define “family planning” at all, so USAID decided to interpret the Helms Amendment as meaning that “recipients of U.S. family planning assistance [are] legally prohibited from supporting abortion as a method of family planning using U.S. funds.”  In practice, it has operated as a total ban on funding abortion.  Even in cases of incest, rape, and danger to the woman’s life.  Even in parts of the world where rape is used as a tactic of war.  Even where USAID is expending resources to help women who were injured or sickened by botched abortions because they cannot access safe, sanitary procedures.

Is this an interpretation that Jesse Helms probably loved?  Yes.  Does the 1973 Senate vote of 50-48, primarily along party lines, suggest that this was the interpretation all along and the Democrats were not pleased?  Possibly.  But if USAID’s interpretation is what Congress intended, wouldn’t the statute have omitted “family planning” and instead read, ‘No foreign assistance funds may be used to pay for the performance of abortion or to motivate or coerce any person to practice abortions’?

Legislative action to change or omit the Helms Amendment has gotten nowhere.  Perhaps our efforts would be more impactful if we pushed USAID to interpret the Helms Amendment in the most obvious way- as barring use of USAID funds to promote abortion as first line birth control.  Intuitively, if the U.S. is committed to helping the people it serves abroad, it should do what is best for women’s health- and that sometimes includes abortion.

 

 

*NOT a national treasure

A Legacy We Can Let Die

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

The number of women and girls raped in conflict worldwide is overwhelming —500,000 during the Rwandan genocide; 64,000 during the civil war in Sierra Leone; more than 40,000 during the conflict in Liberia; 60,000 during the war in former Yugoslavia—the list goes on. In the Democratic Republic of the Congo, nearly 2 million women have been raped.

Rape is one of the oldest weapons of war, yet throughout most of history has gone unpunished—the spoils of war, collateral damage. Only in the past few decades has rape even been recognized as a crime of war. While the United States government has vowed to prosecute those who perpetrate sexual violence in conflict, it has forgotten one important thing—the victims.

Around the world, women and girls who are pregnant as a result of rape are unable to access the care they rightfully deserve. Why? A 40-year-old law named after a senator who led the crusade to reduce U.S. international aid to what he called “foreign rat holes” and compared abortion rights to the Nazi Holocaust—the Helms Amendment.

America’s “foreign policy skeleton in the closet,” the Helms Amendment prohibits that U.S. funds “pay for the performance of abortion as a method of family planning.” But that’s not all—Helms prohibits that aid recipients “motivate or coerce any person to practice abortions.” Basically, groups receiving U.S. assistance (i.e. a lot) are prohibited from discussing abortion. In practice, the Helms Amendment has been implemented as a complete ban on abortion. To top it off—this is happening in countries where abortion is legal.

Let’s be clear—rape, incest, and saving a woman’s life are not family planning. Censoring free speech is a violation of human rights. Forcing women and girls to carry unwanted pregnancies resulting from rape is torture. The Helms Amendment is reproductive imperialism.

This politicizing and stigmatizing of abortion has devastating consequences in countries with struggling health systems and unwieldy maternal mortality rates. The lives of women and girls are not a political issue—they deserve better than this archaic, over-reaching, and paternalistic law. True justice for victims of sexual violence in conflict will only be a reality when women’s voices are put at the center of our foreign policy agenda. We must ensure that victims have access to comprehensive post-rape health care, including access to safe abortion care.

At a June 2013 conference on ending sexual violence in conflict, Secretary of State John Kerry stated that “ending [sexual violence in conflict] is not just a personal priority, it is a priority of President Obama, the government of the United State[s] and our allies.” He declared that sexual violence should be “banished to the dark ages and the history books.” To that I say—if you’re serious, send the Helms Amendment there too.

New Study Debunks Six of the Worst “Myths” About Sex-Selective Abortion

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

The documentary It’s a Girl was released in 2012 to immediate acclaim in traditionally progressive and pro-choice corners – the Amnesty International Film Festival made it an official selection and Ms. Magazine called the movie “unflinching” in its positive review. Fully titled It’s a Girl: the Three Deadliest Words in the World, the film describes the problem of son preference in India and China, telling how, tragically, as many girls are “eliminated” yearly in those countries as are born in the United States. However, the documentary was not quite what it appeared: a 2013 article in Slate uncovered that It’s a Girl was produced with strong, but well hidden, ties to an organization called Harvest Media Ministry that makes anti-choice videos. The film also has a subtle, but real anti-abortion message. The really troubling thing about It’s a Girl is not necessarily who produced it however – anti’s are not automatically incapable of producing material of worth. Rather, the problem is how films like this fit into the narrative of another issue here in the United States: the recent onslaught of “sex-selective abortion” ban legislation that impose criminal penalties on the performance of an abortion sought because of the sex of the fetus.

CaptureLast week I attended a talk coinciding with the release of a new report on the issue of sex-selective abortion bans called “Replacing Myths with Facts.” Produced by Advancing New Standards in Reproductive Health (ANSIRH), National Asian Pacific American Women’s Forum (NAPAWF), and the University of Chicago, the study identifies six common and damaging myths and misconceptions that have allowed sex-selective abortion bans to worm their way into so many legislative sessions. Chief amongst these myths is that male-biased sex ratios “are proof that sex-selective abortions are occurring,” (spoiler: there are other major factors at play) and that the “primary motivation behind laws banning sex-selective abortion in the United States is to prevent gender-based discrimination” (another spoiler: it’s really about restricting access to abortions in general).

The speakers began their presentation by introducing the room to It’s a Girl. It was suggested at the talk, and I am inclined to agree, that one of the reasons both that It’s a Girl has been a hit among pro-choice people and that anti-choice organizations and politicians have so aggressively pushed sex-selective abortion bans is that the issue of sex selection is particularly uncomfortable for pro-choice folks. The notion that people would be actively choosing boy babies over girl babies, and acting on those choices, is disturbing to any person with even the broadest feminist beliefs. Additionally, recent technological innovations that potentially open the door to allowing people to use artificial reproductive technologies to choose traits, including sex, for so-called “designer babies” make questions of sex preference more current and significant. In light of these realities, it is not terribly surprising that many normally pro-choice people may be willing to start carving out exceptions to abortion access – and it is equally unsurprising that racial stereotypes and misconceptions have played a major role.

This, of course, is where “Replacing Myths with Facts” comes in. In its introduction, “Replacing Myths” explains how proponents of sex-selective abortion bans focus on “the problem of ‘missing women’ in China and India in particular” to justify their policies. They rely on and reinforce stereotypes that people in the Asian and Pacific Island community bring these presences and practices to the US. This is myth #5 that “Replacing Myths” debunks: the most recent studies have found that foreign born Chinese, Indians, and Koreans actually “have more girls overall than white Americans.” This is a particularly important myth to debunk because the way the laws are designed – putting the onus on the health care provider to deny abortions based on son preference with the threat of criminal sanctions –opens the door to doctors generally denying API women abortions out of stereotype fueled fear.

Sex-selective abortion bans have become an extremely prevalent tactic to limit abortion access, and the fact that these policies are based heavily on racist stereotypes and spread by playing on people’s racial misconceptions make this an issue of particular import to supporters of reproductive justice. I encourage you to read “Replacing Myths with Facts” and to inoculate yourself as best you can against the lies around sex-selective abortion.

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.

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.

 

Birth Control vs. Population Control, and Why it Matters

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

Earlier this month, I attended a discussion hosted by Population Action International, NARAL, and the Ibis Foundation, addressing the global gag rule and its effects on reproductive health worldwide.  Basically, the gag rule is a U.S. executive policy that prevents any countries receiving U.S. family planning aid from offering abortion services, even if the country wants to use its own funds to do so.  It was created under the Reagan administration – every Democratic president has since reversed it, and every Republican president has reinstated it.  It’s a clear anti-choice policy that has disastrous effects on family planning initiatives worldwide.

During the talk, the NARAL representative alluded to allying with environmental action groups.  When birth control advocates/family planning initiatives “go abroad” and team up with environmentalists, I tend to get concerned.  The language can quickly move away from the need for universal access to the variety of contraceptive methods and instead focus on how developing nations are “irresponsibly reproducing”.   So often I hear rhetoric like, Lower birth rates will put less strain on our natural resources! Or, We’re reaching our carrying capacity!  Such statements are especially misleading because the U.S. actually consumes more natural resources than developing countries.  I was pleasantly surprised that this talk kept its focus on ensuring the right to family planning for all women.

As a person who cares about RJ, I absolutely support the right to global contraceptive access and I also think it’s really important to take a nuanced look at the way we talk about population control in relationship to birth control access, in the light of the U.S.’s own eugenic history.

Let’s not forget that not one generation ago we were forcing sterilization upon disabled people, incarcerated people, and poor people, in an attempt to create a more “fit” American population.

Let’s not forget that in the 1970s, African American and Puerto Rican women were disproportionately sterilized without their consent.  Meanwhile, white women were campaigning for the right to birth control.

Let’s not forget that the United States knowingly sold the dangerous Dalkon Shield contraceptive to developing countries, after it was removed for sale in America.

Let’s not forget that the reproductive justice movement aims for the freedom to choose when and how to have a family (or not).   When we introduce anything else into the equation – even for the sake of “saving our planet” – it becomes coercive.  If we shift away from this concept for the sake of “saving our planet” we lose the voices that matter most: the people in the population.  And if replacement population rates become the end goal for contraception distribution, rather than enabling women’s agency and autonomy worldwide, we’re at risk of replicating our eugenic past (and present).  Population control efforts and RJ efforts may both create the same result (a lower population), but to me, intent is what matters most.

It’s the World Cup Again! Time to think about RJ.

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

I adore the World Cup.  I try my very best to spare my friends and loved ones, but I could happily talk all their ears off about the tournament all day without it ever getting old. And the fact that this year’s games are taking place in Brazil – the spiritual home of futebol – has made it all the more exciting.

However, given the ludicrous scale of this kind of global sporting event, some of the most important, fascinating, moving, and upsetting stories have taken place outside the newly built stadiums and team base camps. For example, with the collective eyes of the world trained on Rio de Janeiro and São Paulo in the months preceding the games, Brazilian citizens spilled into the streets to protest their government’s allocation of massive funds to stadium building at the expense of transportation, education, healthcare, and other vital services. Events like the World Cup or the Olympics give people around the world a unique opportunity to learn about the internal issues of the host nation because mainstream news outlets give the country more in-depth coverage than they ever would otherwise.

You might be wondering, well what does the World Cup have to do with RJ? Well, several articles have been cropping up about the effects the World Cup has had on sex work in host cities around Brazil. The tone and content of articles have varied widely, and while the influx of tourists and media has created an environment of heightened exploitation, it has also given some Brazilian sex workers an opportunity to be heard on a world stage.

Sex work is legal in Brazil, so long as the worker is over the age of eighteen, but according to the Huffington Post, the World Cup is expected to cause a marked increase in child prostitution in areas near the stadiums. The HuffPo article points out that this type of phenomenon is all too common and cites an expert writing on human trafficking at this year’s Super Bowl who wrote that events that attract huge numbers of (male) fans “could never not be breeding grounds for sexual exploitation.” Apparently, the last two World Cups also saw increases in child exploitation as high as 30-40%, and this year’s tournament will once again juxtapose the vibrant celebration of the games with the tragic reality of human trafficking. As advocates for reproductive justice –or any kind of social justice for that matter – this type of pattern is unacceptable, and the notion that it is just the-way-these-things-are needs to be strongly countered.

Elsewhere, in an altogether different kind of story, RT.com reported on a public pick-up style game of soccer played between professional (adult) sex workers and a group of American Christians on a street in Belo Horizonte. The “naked match” was organized by the Prostitutes’ Association of Minas Gerais to draw attention to sex workers’ rights and to protest prejudice and stigma. Above all else, these members of the “naked Brazilian forces” called for their profession to be treated like any other legal job. In addition to providing a refreshing take on the dignity of sex work, this event has produced some of the most striking images I have seen during the World Cup. I highly recommend that you take the time to look through them.

Ultimately, I’m not entirely sure what to take from these stories or how they should color my enjoyment of the actual soccer matches. Just as the World Cup itself is complex – simultaneously a bloated and exploitative celebration of excess and an event of pure joy – this small sample size of media coverage speaks to many more complicated issues than these journalists have the time or inclination to fully flesh out. But in the end, I suppose it is just more proof that there are very few things in this world that don’t lend themselves to some thoughts on reproductive justice.

Do you know about the Helms Amendment?

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

Many of us know about the Hyde Amendment, but do you know about the Helms Amendment?  The Helms Amendment was passed in 1973 to the Foreign Assistance Act, restricting abortion funding abroad. Yesterday marked the 40th anniversary – here are the top 5 things you need to know about how it hurts women globally.

  1. Both the Helms Amendment and the Hyde Amendment are restrictions on abortion care that deny women at home and abroad the care they need.  Both were passed soon after Roe v. Wade became law.
  2.  The Helms Amendment attaches restrictions on abortion care to overseas federal funding.  It not only withholds access to safe abortion services but it also denies women information on abortion care.  Millions of women rely on U.S. funded programs in their countries for their reproductive health care.
  3. The Helms Amendment contributes to 47,000 deaths each year because women are forced to seek unsafe abortion services.
  4. Unfortunately, the Helms Amendment has also negatively impacted efforts to increase the use of contraception for women who would like to begin a contraception regimen after seeking abortion services.  Studies show that women are more likely to use contraception following abortion care when family planning services are offered at the same facility where they received abortion services.  Due to the Helms Amendment, women must find family planning counseling and services at another facility, lessening their ability to receive contraception.
  5.  Latinas in the developing world are greatly affected by the Helms Amendment because it deincentivizes efforts to decriminalize or legalize abortion care.  For instance, 18 states in Mexico have passed constitutional amendments that declare the sanctity of life since conception.  In these 18 states, women will not be able to get the care they need because they are less likely to have providers who are not receiving U.S. funding.

For more information, check out this factsheet by our friends at Ipas.

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.

Channeling Human Trafficking Survivors

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

New York announced that it will be among the first to create specialized courts for human trafficking and prostitution.  This move is indeed a step in the right direction.  Human trafficking has achieved celebrity status in human rights reform – likely because there aren’t many sympathetic defenses to “modern slavery” (e.g.,“Oh, whoops, I just forgot to pay my cleaning lady while I kept her in my basement for the past eight years” doesn’t fly too well in federal court).

However, the path to justice for victims of sex trafficking is complex.  We know (as The West Wing aptly noted) that no little girl says, “I want to be a prostitute when I grow up.”  And yet, the way the criminal justice system treats prostitutes would lead anyone to improperly deduce this motive.  This inference is so strong that it trickles into punishing children who are forced into sexual exploitation for money (most or all of which they don’t get).  Somehow, states find no problem in punishing children for prostitution, while contemporaneously declaring their inability to consent to sex (in statutory rape), their inability to enter into a contract (in contracts), and their inability to work (in child labor).

Proving that human trafficking is afoot requires “force, fraud, or coercion” – this burden does not seem high, but in practicality can be insurmountable.  “Pimps” use a grooming process (like that of pedophiles) for both children and women.  This tactic can even lead to victims defending their trafficker.  Despite New York’s laudable step, the trafficking courts will continue processing prostitutes through the criminal system (aka prosecuting them). Courts would do well to remind themselves, in considering “force,” that girls grow up wanting to be doctors, lawyers, teachers, etc., rather than an object of commercial sexual exploitation.