Hi, folks. As Julie mentioned in her intro post, I’ll be guest blogging at Repo Repro this summer while she masters the bar exam. A little about me: I’m headed into my second year at UC Davis School of Law (King Hall) and will be co-chairing my LSRJ chapter for the 2008-2009 academic year. I’m also a news junkie, and blogging is one of the things I do for fun (yeah, huge nerd here) so I’m thrilled to have an opportunity to apply those dubious talents for a good cause. Thanks for reading!

–Erin Simonitch

Small changes can make a big difference.

It’s a principle that helps sustain and hearten those of us committed to social justice. Without it, the magnitude of the work would overwhelm us. But it’s a double-edged sword, because the principle operates whether the change is for better or for worse. So it’s also why law schools drill “baby lawyers” to obsess over details and precise wording. Use the wrong language in a contract agreement, leave out an important detail, fail to thoroughly define your terms, and sooner or later the consequences will explode into thousands of dollars of unnecessary expenses, while you’re stuck in court debating the meaning of the word “chicken.” (As my property professor likes to point out, litigators exist to clean up other lawyers’ messes.)

Members of Congress demonstrated their failure to understand this concept when they passed the 2005 Deficit Reduction Act, making a small change in federal Medicaid law that has a big impact on young women’s access to contraceptives. Before the Act’s passage, pharmaceutical companies could and did offer hormonal contraceptives at significant discounts. But in drafting the new rules for calculating Medicaid rebates, lawmakers left out a provision that would have preserved those discounts for campus health centers. Now, pharm companies must sell contraceptives to clinics at higher prices or suffer a financial penalty–a “business decision” that’s all too easily made by corporations for whom the bottom line is, well, the bottom line.

The result, of course, is that students pay the price. Contraceptive costs have risen dramatically on college and university campuses, sometimes as much as 500%.

(more…)

The subject line of the email sending me this article read “omg omg omg omg omg.” How else would one react to the following:  an Australian obstetrician/gynecologist, who performed countless surgeries on countless women over the course of his career, has been found to have botched many many surgeries — and to perhaps maliciously alter many more. In one case, a woman went into the hospital to have a small lesion on her labia removed. As she slipped into unconsciousness (from the anesthesia), he leaned over and whispered to her, “I’m going to take your clitoris too.” Sure enough, she woke up to the searing pain of genital mutilation. Because of her trauma and embarrassment, the woman didn’t speak up for two whole years. Because no one was checking credentials, neither this woman nor the countless others who visited Dr. Graeme Reeves, knew that he had been barred from practicing obstetrics in 1997 because he had refused to treat a woman’s puerperal fever. The woman later died. The medical board found that the doctor had “impaired mental capacity”. But he didn’t stop practicing, and he even lied his way into a job in 2002–the position in which he later mutilated Carolyn, the woman whose story is related above. There’s more:  

 Another woman went in for surgery on an ovarian lesion, and ended up with both ovaries, both Fallopian tubes removed; and a kidney gone, also, after complications ensued.

Another woman reports that Reeves failed to use gloves when performing a gynaecological examination, and used an “intimate, sexual” touch, as well as touching her breasts unexpectedly.

Another woman says that Reeves spent over an hour painfully attempting to insert an IUD after she had an abnormal Pap smear, saying “I haven’t got this right”. He performed no cervical biopsy, and she was later found to be riddled with cancer throughout her pelvis. 

So how did Dr. Reeves get this far? Why did more women not speak up?  And why, for the love of all that is holy, is Dr. Reeves’ medical malpractice insurance not covering care for Carolyn’s injuries? Like Hoyden (linked above), I’m going to say that this is a product of patriarchy at work. Hoyden writes:

This isn’t a borderline case, a known but unfortunate side effect, a medical slip: this is a seriously impaired doctor practising for many months in completely inappropriate ways, mutilating, and raping patients - and nobody around him, not his colleagues, not nurses or other staff, were able to stop him. Did they convince themselves that it “wasn’t that serious, really”? Did they convince themselves it was none of their business? Did they fear personal repercussions should they blow the whistle? Why did nobody so much as check his registration when he was employed? 

No one spoke up because women are told to feel shame about their bodies, and are made to feel like deviants for talking or thinking about their sexual and reproductive health. Carolyn waited two years (two years!) before speaking up about what Dr. Reeves did to her. And while I can’t for the life of me begin to explain why Reeves did this, I can’t help but think that it’s in some way connected to some sort of patriarchy-fueled desire to mark/own/control women’s bodies.What’s more, our society (this took place in Australia but is reflective of trends worldwide) continues to tsk-tsk men like this but not really to punish them. Dr. Reeves is not practicing any more, true, but he’s not in jail. Seems to me he’s much more dangerous than the average non-violent drug offender who finds him or her-self serving a long prison term, a victim of the US’s overly harsh drug laws. So now, 11 years after the first complaint was lodged about Reeves, he’s finally being held back from raping and injuring any more women (even if not by jail cell bars). But 11 years!? Makes me wonder if we’ve made much headway tackling subconscious misogyny and antipathy toward women’s sexual lives. 

[and I’m back!]

The South Dakota abortion ban, which was handily rejected by voters in 2006, is making an unwelcome return.  Despite the fact that state legislators last year refused to resuscitate a statewide abortion ban (after a statewide organizing drive), a group of lawmakers (and others) are circulating a petition to get an abortion ban referendum on the ballot next November (this time with exceptions for rape, incest, and a woman’s health). They need about 16,000 signatures to get it on the ballot; there are 800 abortions performed annually in South Dakota.

The kicker in all this? One of the legislation’s sponsors is an Ob/Gyn who for one year worked at a Planned Parenthood.  From the Rapid City Journal:

Thirteen people sponsored the petition, including Dr. Patricia Giebink, a Chamberlain obstetrician-gynecologist who performed abortions at Planned Parenthood in Sioux Falls in 1996 and 1997. In 2006, she started working on the campaign to ban them.

The proposal would effectively prohibit abortions as a means of birth control, Giebink said.

“This is what the people said they wanted after the 2006 campaign. And a number of polls since then indicate a majority of people believe abortion should not be a method of birth control,” Giebink said.

“We have worked with a panel of experts to ensure this bill will make a good law. We went with what we did before, plus we made the changes that we said the people wanted.”

Ok, first, as Cara points out, abortions are a method of birth control in the most formalistic sense — they prevent births.  Second, is anyone else sick of this birth control as straw man argument? Because I sure am. There’s more than ample proof that the vast majority of women do what they can to prevent pregnancies. What’s more, discussing abortion as birth control as in “an easier substitute for the pill” shows a total lack of understanding of the intricacies of women’s lives — the fact that some women cannot afford or do not have access to birth control, the fact that cultural barriers or domestic violence prevents a woman from using birth control when she would like to, the fact that sometimes pregnancy just … happens. Pretending for your own PR that women are just too damn irresponsible to prevent pregnancy in the first place is both condescending and flat-out not true.

The great irony, of course, is that the rhetoric surrounding the push for an abortion ban in South Dakota has been all about how abortion “hurts” women (though notably lacking any proof that it does). But I can’t think of much that would hurt women more in the long run than talking about them (us) as if they (we) were five year olds who just didn’t think of the consequences of their (our) actions.

The blogosphere has been a-twitter with the news this week of a proposed Missouri ballot initiative that would virtually ban abortion in the state. Unlike the South Dakota ban that was defeated last year, this ballot initiative does not come right out and admit its intentions to bar the procedure; instead, it would create such onerous requirements that no doctors would be able to perform abortion in the state and it would become de facto illegal. Insidious, huh?

Here’s why: According to the Jefferson City (MO) Star, the Missouri ballot initiative “would require doctors to extensively review the medical literature on abortion and investigate each patient’s background and lifestyle. It would require doctors to certify that the abortion was better for the woman than a full-term pregnancy.”

Taking a page right of Justice Kennedy’s Gonzales v. Carhart play book, in which he more than implied that women should not be trusted with a “decision so fraught with emotional consequences,”  this ban suggests that women are not…smart? autonomous? adult?…enough to decide for themselves whether or not to end a pregnancy. Instead, doctors need to protect the poor little women to make sure they don’t make a mistake. And if the doctors “fail” and a woman later regrets her abortion? The doctor would be subject to civil suit.

Missouri’s ballot initiative makes clear how worried we should be about the emergence of the “abortion hurts women” argument - a line of “reasoning” that first appeared in the fight over the South Dakota ban. That the “abortion hurts women” line resonates with so many people is worrisome. Not because it’s true (which, on the whole, it is not), but because it validates the antiquated thinking that women are not men’s equals and not entitled to the full autonomy that citizenship provides. And because so many people seem to want that idea validated to begin with.

Over the past few years, the RJ community has been watching the Right’s shift in abortion rhetoric. The forced pregnancy folks went from talking about dead fetuses to focusing on how abortion is supposedly bad for women.

Or so we thought.

This week, two proposed state bills would bring the those fetuses back…with a vengeance.

In Colorado this week, the state Supreme Court cleared the way for a ballot initiative that would change Colorado law to recognize a fetus as a person from the moment of fertilization. That’s right. Before there’s even a pregnancy (which doesn’t occur until the fertilized egg implants in the uterine lining and starts to produce the hormones that sustain it), there would be a person. With full constitutional rights to due process and equal protection. Which makes me think that anything from using embryonic stem cells to having your period could make you at best responsible for a violation of someone else’s constitutional rights and at worst a murderer. Not sure what I mean? As bean at Lawyers, Guns & Money puts it:

If the law were to pass, it would mean no abortion. No selective reduction for women who become pregnant with several embryos through IVF. No stem cell research. And, yes, no menstruation. Because about 1/3 to 1/2 of fertilized eggs fail to implant and are flushed out of the body during menstruation. Which, as Amanda notes, would make “your average tampon a potential scene of negligent homicide.”

Echidne wonders:

And do pregnant women count as two persons if this measure is passed? Do they have to pay for two at theaters and at movies? Do they get double rations in the military? What about a pregnant woman who watches an R-rated movie? Should we punish her for exposing the microscopic American to filth?

Funny, but only because it’s so damn appalling.  What’s worse, it’s not unique. Today, the National Partnership for Women and Families reported that a Montana legislator has proposed a similar bill to define person as beginning at fertilization. Rick Jore, the bill’s sponsor, had this to say:

According to Jore, the measure would not directly outlaw abortion but would establish constitutional rights for a fetus or human embryo, so they could not be deprived of “life, liberty and property” without due process of law, Jore said. “There’s been an effort across the nation to go to this strategy in the pro-life arena, to challenge the whole notion of Roe v. Wade by establishing the definition of a person,” he said.

The good news is that he proposed an identical bill last year, and it failed. The bad news is that he got 45 votes in support of it (and 53 opposed). It can’t be that 45 of 100 average Americans think fertilized eggs are constitutional people too, can it? If I’m wrong, we might have even more work to do than I thought.

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.