Candace Gibson, University of Utah College of Law

*The views expressed in this blog post are those of the blogger herself; she is not speaking on behalf of Law Students for Reproductive Justice.*

Many of my law school colleagues and I have dipped our toes in the immigration law pond.  In my experience, when people ask me what type of law I am most interested in, and I say, “immigration law,” it invites a conversation that I don’t want to have.  I’m hesitant to speak about immigration because I never know if the person on the other side will be an individual who has no idea that our immigration system is broken and will use language that is derogatory to me and the clients I’ve worked with.

With the start of Utah’s legislative session this week, I am not only feeling this hesitancy but anger.   Representative Herrod, who has announced that he will join the U.S. Senate race to upseat Senator Hatch, has decided to sponsor legislation that would gut the Utah Immigration Accountability and Enforcement Act passed last year.  The Utah Immigration Accountability and Enforcement Act would create a guest worker program for those who are undocumented in Utah but would like to legally work and live in the state.  In order to get a permit, individuals would have to get a background check, take English and civic classes, and their tax contributions would be tracked.   Aside from the constitutional issues at hand and the likely possibility that the federal government will not give a waiver so that the state can implement this legislation, many immigration advocates were excited because the bill was solution-oriented.  Herrod’s legislation would convert the Accountability and Enforcement Act to the Utah Illegal Alien Family Transition Pilot Program.  Don’t you love the name?  His legislation would only allow individuals who have either (1) overstayed their visas or (2) let their visas expire and have children of a certain age and that were born in specific countries apply. Individuals who came into the country without inspection or through non-legal means could not apply.  The bill would allow local enforcement agencies to detain individuals who they suspect of being in the country without any legal status and punish law enforcement agencies that do not comply with enforcement laws by withholding state funds from them.   Before any of this happens, the bill states that our congressional delegates must lobby for amending federal immigration statutes so that Utah may implement this program.  Herrod said this about his bill, “The forgotten person in all of this has been the legal immigrant. We’ve passed laws that are aiding those who come here illegally. That is wrong; we need to work on laws that aid the legal immigrant.”

What Herrod has forgotten or does not want to acknowledge is that in some places in the world there is no functioning way to legally migrate to the U.S.  If I have to wait at least ten years to migrate from Mexico through a family based visa or if my only other option is to be sponsored through an employer, that is not a functioning immigration system.   I am all for state legislation that pushes the federal government to reform our broken immigration system, but legislation that guts another bill that may be unconstitutional is a waste of time and only foments a heated debate.

Reproductive justice isn’t just about abortion and contraceptives, but about improving the lived realities that impact people’s ability to decide when, how, and if they want to parent.  Because many immigrant women have no legal status, they are more subject to intimate partner violence, lack insurance coverage, and are vilified through the media as mindless, breeding machines whose sole purposes are to birth “anchor babies” and “terrorists.” Immigrant women are clearly part of this struggle. In Utah alone, immigrant women already have been targets of gender-specific threats.  In 2010, Concerned Citizens of the United States compiled a list of 1300 individuals who they thought were in Utah without legal status, asking them to be deported, and sent the list to media outlets.  The list included names, social security numbers, and even pregnant women and their expected due dates.    Herrod’s bill isn’t going to help most immigrant women and it definitely isn’t adding anything new to our country’s immigration debate. 

Mallory Carlberg, University of Oklahoma College of Law

*This post is part of a series written in support of Trust Women Week Silver Ribbon Campaign and the online virtual march from January 20-27. LSRJ is proud to partner with numerous orgs across the country – join the march by sending a message to your lawmakers today! And check back here throughout the week for more posts.

With the anniversary of Roe and the start of a new year, January is a time of reflection for the reproductive justice movement. Reproductive rights organizations publish summaries of the previous year’s anti-abortion legislation and predict what’s to come as state legislatures reconvene. OU LSRJ students have been discussing new bills Oklahoma legislators will introduce this session. In addition to the widely publicized bill outlawing the use of fetuses in the food industry. Legislators will also introduce a personhood bill and a bill requiring the use of an electric fetal heart monitor during abortion procedures. It’s easy to focus solely on the abortion debate since abortion opponents are often loudest about this issue. But there is another issue that deserves our attention: the idea of contraception as prevention.

I want to be clear that what I mean by contraception as prevention is not that we should be preventing abortions. Once we start saying there are good and bad reasons to have abortions, we are no longer trusting women. Our focus instead should be on preventing unplanned pregnancy. Of course this would also prevent abortions, but we should be supporting contraception because it helps people control when or if they have a child and not solely because it prevents abortions.

This year extremist anti-birth control views reached the mainstream. Four GOP presidential candidates participated in a debate sponsored by Personhood USA and signed a “personhood pledge”. Rick Santorum, a GOP frontrunner, has gone so far as to call birth control dangerous because it enables people to have non-procreative sex. And here in Oklahoma a well-known Representative went on record saying that some forms of birth control kill a person. The previous examples show that although Griswold v. Connecticut established a right to privacy and a right to contraception way back in 1965, these rights are still not secure. Affordable, accessible birth control is still not a reality for all.

This year there were both victories and setbacks in the fight to expand birth control access. Under the Affordable Care Act most women employed in the US will have their birth control fully covered by their insurance and religiously affiliated employers will not be exempt from this. However, this year HHS Secretary Kathleen Sebelius vetoed the FDA’s recommendation that Plan B be available to teens under 17 without a prescription. Pharmacists also continue to deny adult men and women access to emergency contraception based on misunderstandings about the law or moral objections to the method.

As we celebrate Roe this week, we should remember that making affordable and accessible birth control is just as important as making abortion affordable and accessible. People need both birth control and access to safe abortions to achieve reproductive autonomy.

Burke Bindbeutel, University of Missouri School of Law

*This post is part of a series written in support of Trust Women Week Silver Ribbon Campaign and the online virtual march from January 20-27. LSRJ is proud to partner with numerous orgs across the country – join the march by sending a message to your lawmakers today! And check back here throughout the week for more posts.

The anniversary of Roe v. Wade reminds our Mizzou LSRJ chapter of what an important milestone the 1973 Supreme Court decision was. In the face of years of entrenched opposition, the Court affirmed a woman’s right to terminate a pregnancy. While reproductive justice advocates should cherish the power that the decision granted them, the anniversary also should remind us that Norma McCorvey’s lawsuit was in fact a partial victory. Supreme Court decisions can flip controversial laws, but the most important decisions also inspire backlashes. When reproductive justice is “constitutionalized,” it becomes denatured and defensive. Mizzou LSRJ has been at pains to not be stigmatized as “The Abortion Club,” a state of affairs at least partially due to Roe v. Wade.

The decision interrupted an evolving political discourse, and rested upon an unwieldy compromise. Roe extended Griswold v. Connecticut’s right to privacy to a woman’s decision to abort, but it also stressed that the government had a stake in that decision. Justice Harry Blackmun addressed public safety concerns by discussing fetus “viability,” a slippery term, then and now. The Court did not inform America about when a state’s interest in the potential life of a fetus eclipses a woman’s self-sovereignty.

Here in Missouri, we pioneered the sideways attack on a woman’s right to choose, which the Supreme Court deemed constitutional in Webster v. Reproductive Health Services. Rather than a frontal assault on abortion rights, the Missouri legislature in 1988 barred public funds from sponsoring abortion services or even counseling that related to abortion. Before this surprising decision, states had presumed that interfering with abortion rights would have been precluded by Roe. But in Webster, Justice Rehnquist had his revenge. The subsequent Planned Parenthood v. Casey elaborated on just how states can curtail rights not directly but through obstructive measures like parental consent and waiting periods. These later cases exposed the main flaw of Roe: it may have gone some ways towards shoring up individual rights, but mainly it served as a temporary stay on the anti-abortion brigades.

Neal Devins has argued that the compromises of Webster and Casey have struck a workable balance on the abortion issue. But it is not the role of the Supreme Court to author political consensus. And there is little evidence that partial victories have placated the religion-informed anti-Roe factions. Limited abortion rights are still intolerable to that contingent, and reproductive justice advocates cannot be satisfied with the lack of abortion services in 97 percent of Missouri counties, or the arbitrary requirement that doors in abortion clinics must be at least 44 inches wide.

Judicial fiats covering negative rights are not necessarily the best process by which to protect the dignity of a citizenry, argues Robin West. Roe’s deterioration has put RJ advocates on the defensive. The 1973 decision narrowly framed the broad reproductive justice debate. What could have been, and could still be, a conversation about self-sovereignty and the minimal state has become a fight about the appropriate circumstances for pregnancy termination.

We should not have to continually reexamine the penumbras of 1789 in order to obtain the autonomy that underlies the right to an abortion. Instead, we should expect it from our lawmakers, and throw them out on their ear if they don’t acknowledge us. Roe was a precious victory, but the Supreme Court can’t help us help ourselves.

Mallory Carlberg, University of Oklahoma College of Law

This month an attorney from the National Advocates for Pregnant Women (NAPW) visited Oklahoma to talk about her work with grassroots activists in Mississippi. Mississippi voters recently rejected Initiative 26, a personhood amendment, which would have defined legal personhood at the moment of fertilization. Shortly after the victory in Mississippi, an Oklahoma group announced they would seek approval to collect the needed signatures to put a personhood amendment on our next ballot. Mississippi activists did a wonderful job with their various campaigns against personhood, but activists here are glad to get earlier notice of a similar campaign and to learn from their experiences.

The NAPW attorney discussed campaign logistics with us. Mostly she stressed that we need to be flexible in our messaging. For example, health care professionals are going to have different concerns than lawyers who are going to have different concerns than people of faith. Throughout her talk, I thought about last summer’s LSRJ Leadership Institute where I heard a presentation on the role of lawyers in the reproductive justice movement. The speaker said that lawyers should be the experts on reproductive rights law and provide activists with information and resources. NAPW is a great example of a national reproductive rights legal organization working with local reproductive justice activists in this way.

If the media dedicated airtime to Initiative 26 at all, most reporters focused on the amendment’s possible effects on birth control and assisted reproductive technology. However, NAPW has been highlighting the equally, if not more, troublesome effect an amendment might have on pregnant women who choose to carry their pregnancies to term. Explaining to the general public that, under a personhood amendment, a woman could lose her status as a constitutional person is a more difficult task, which requires legal experts at least initially. NAPW has framed the message in an accessible way, using legal research and past cases on which they have worked to show how a personhood amendment could create unprecedented state power to control pregnant women. Here is an example of a resource they provided for grassroots groups in Mississippi (http://youtu.be/iU2BZN_GrhI).

Hopefully, Personhood Oklahoma will not collect the signatures they need, but with the support of reproductive rights lawyers, Oklahoma activists are preparing for if they do, and OU LSRJ will be there to foster an in-depth discussion among our classmates on the legal issues surrounding fetal personhood.

Mallory Carlberg, University of Oklahoma Law School

Anyone who follows reproductive justice news knows that Oklahoma is often the testing ground for new anti-abortion legislation. State legislators pass bills through the House and Senate with ease. Even when a Governor vetoes a bill, both bodies often have the two-thirds majority needed to override the veto. Since the 2010 midterm election, the situation has only worsened. Our new Governor will not veto any anti-abortion measures, and our new Attorney General endorses redefining “persons” under the Fourteenth Amendment to include fetuses. Oklahoma politicians also routinely undermine other reproductive justice concerns, such as access to comprehensive sex education, family planning services, and social programs assisting struggling families.

The University of Oklahoma (OU) law school produces an excellent class of lawyers every year, most of whom will work in Oklahoma and Texas. A sizable amount will be the next generation of legislatures and judges. In classes, constitutionally protected rights are often discussed in a vacuum as if race, class, gender, sexuality and ability do not affect a person’s experience of their rights. One major goal in starting OU Law Students for Reproductive Justice (LSRJ) is to engage future Oklahoma lawmakers with reproductive rights in a deeper way. The RJ movement’s refusal to be a single-issue movement makes it ideal for building coalitions in a red state. Even if a student’s personal views are against abortion, we can often find common ground on other RJ issues like domestic violence, maternal health, and sex education.

At meetings we want to educate law students on issues they may not have considered and re-complicate the already complicated issue of abortion. This process will start with our upcoming event RJ 101. OU LSRJ members are also helping with “Take Root: Red State Perspectives on Reproductive Justice.” OU, RJ non-profits and RJ community groups have come together to bring a conference to OU next semester, which will focus on red-state specific issues. The conference will showcase national and local leaders and provide young, RJ activists with a space to meet and exchange ideas.

Though our state may have further to go than others to achieve RJ for all, the willingness of OU law students to discuss these issues and the support OU LSRJ has received from faculty inspires me. There is a small, but growing group of Oklahomans who are dedicated to bringing these issues to light. I am excited for OU LSRJ members to bring that conversation to the law school.

This is the third in a series of posts by LSRJ alum Heather Sager (’10, Indiana University Maurer School of Law) who recently took a position at the Human Rights Law Network in India. Heather will be bringing us along on her journey through the field of international reproductive rights work.

I’ve mentioned before that part of my work with HRLN focuses on holding public tribunals. At these tribunals, we host people who have approached the State Human Rights Commissions and were ignored. Since we can only host a limited number of complainants, we choose based on a variety of factors, one of which is the inclusion of a variety of human rights violations. We try to focus on some of the most pervasive issues within whatever state we’re working. One of the most common, disturbing problems we see across the board is rape.

Part of my research into any human rights issue includes looking into the relevant legal and procedural background. In the process of researching rape, which I believe to be worsened by largely systemic issues within the country, I began to write about some of the more all-encompassing legal and social problems. This introduced me to rape investigation procedure in India.

Last September, Human Rights Watch issued a report calling attention to the use of the per vaginum examination (or, ‘finger test’ as it has been affectionately dubbed) in examining rape survivors in India. The report called for Indian legislation to introduce a standardized method of examining women and for the government to ban the use of a cruel, archaic process.

The per vaginum examination has been a controversial method of post-rape examination for some time. The method requires that a doctor insert his fingers into the vagina. Through this, he determines whether the hymen is present or absent, the ‘laxity’ of the vaginal tissue, the general shape and consistency of the vagina.

Until recently, this method was used across the board, in every case of reported rape where a medical examination was performed. In many instances, the per vaginum examination was performed without the woman’s prior knowledge or consent.

The per vaginum examination has long been discredited as a reliable test for medical purposes. Not just highly subjective, with unpredictable results, because of the test’s methodology (if we’re being generous with the word), it’s particularly cruel when administered immediately following a traumatic sexual assault.

But despite the widely agreed-upon fact that a finger does very little to serve as a consistent standard, the state has done very little to see that this practice is stopped. In March of this year, the Union Health Ministry of India issued new standards of post-sexual assault examination that, while improved, are greatly lacking.

The good news is that the new standards have barred using such helpful medical determinants as how well the woman is dressed and how well she keeps up her oral hygiene. The bad news is that the guidelines only limit the use of the finger test, allowing medical personnel significant leniency in deciding whether a situation warrants the use of the test.

Arguments that the test could still be of some use have been put forth, and the Ministry seems to have been listening. I wonder if they were also listening when the courts have used ‘finger test’ results in rape proceedings, calling attention to whether the woman is ‘habituated to sexual intercourse.’ Although the Supreme Court of India ruled in 2003 that a woman could not be cross-examined on her moral character in a rape case, courts across the country have continued to issue opinions on the general believability of her testimony, based in part on whether she may or may not have been sexually active.

Although my work in Delhi doesn’t focus solely on women’s rights issues, we deal very heavily in the area. As part of the Tribunals we hold, I’ve met with rape survivors here who were beaten by their attackers, refused help by the police, and ignored by the Commissions whose responsibility it is to protect them. Let’s add to this the doctors who may or may not decide this “test” is necessary in order to examine them and a court that may or may not use her ‘vaginal laxity’ to determine her reliability as a witness.

And the standard that decides whether one is ‘habituated to sexual intercourse’? Two fingers.

Last weekend I was grabbing drinks with a friend who used to work “in the movement” and she asked me, “So what’s going on with our reproductive rights? Are we doing anything about this?” As I started to explain the important work advocates are doing and my optimism about the fate of reproductive justice policy in the long-term, I found myself recounting many of the experiences I had during my fellowship year.

I was placed with the Women’s Health and Rights Program at the Center for American Progress (CAP). CAP is a think tank that develops new policy ideas, critiques policy that stems from conservative values, and challenges the media to cover the issues that truly matter and shape the national debate. The Women’s Health and Rights Program incorporates a reproductive justice framework into this work.

My fellowship year has been filled with invaluable opportunities for learning and growth thanks to the Director of the Women’s Health & Rights Program, Jessica Arons, and Senior Fellow Shira Saperstein, who are incredibly smart, quick, thoughtful, and creative (hence my aforementioned optimism).  But one of the most significant takeaways from my year at CAP is about the importance of collaboration.

It seems obvious, right? It is, especially since I’m not new to the DC machine. Yet CAP’s unique organizational structure – various teams and sub-teams divided by policy area, each with experts in the given field – gave me a lesson in how to strategically collaborate with seemingly un-usual suspects.

One example of this type of cross-cutting collaboration was on the issue of access to abortion for women in the military. Much has been done by reproductive rights and justice advocates to argue that servicewomen deserve coverage for the full range of reproductive health services. Congress gets it – the “women’s rights-ers” don’t like military health care. Perhaps we could use an additional messenger.

Enter Lawrence Korb, a Senior Fellow for CAP’s national security team and seasoned military expert.  Among other things, Korb served as Assistant Secretary of Defense during the Reagan Administration. He also thinks the military’s health care for servicewomen is inadequate. Thanks to this connection, the unlikely voice of a former Department of Defense official is speaking out about the DoD’s unfair reproductive health policy. (Read Korb’s op-ed here).

I was able to collaborate with many other teams at CAP on reproductive justice issues – not only broadening the available expertise, but also broadening the audience. Every little bit helps in this town. I am grateful to Jessica and Shira and LSRJ for showing me that although issues may appear siloed, there are opportunities for strategic collaborations!

Alex Walden (’10 University of San Francisco School of Law)

2010-2011 RJ Fellow at the Center for American Progress

This is the third in a series of reflection posts by our outgoing (and inaugural) class of Reproductive Justice Fellows. Click here and here for the first and second entries and visit the RJFP page for more information about the program.

Hard to believe an entire year has gone by!  It was just a year ago that I graduated law school, sat for the bar exam, and moved to the DC area.  As I finish my last full week at my host organization, the Asian & Pacific Islander American Health Forum (APIAHF), I find myself reflecting on the amazing year I’ve had in the policy world and the wonderful start to my career this provided.

As a fellow at APIAHF, I’ve been immersed in the world of health policy, working on a number of exciting issues, including the recently passed Affordable Care Act, or Health Care Reform.  Over the past year, I’ve been able to see firsthand how federal policy is made, including through legislative and administrative advocacy.  I’ve become friends with the Federal Register, a goldmine of information for all things federal, and learned the importance of making sure the voices of underserved communities are heard.

My time at APIAHF has been a whirlwind and has felt like policy boot camp.  I couldn’t have come to DC at a better time to work on health care issues, and I am excited for the newest LSRJ fellow to continue where I’ve left off.  I am indebted to LSRJ for funding this once in a lifetime experience, as well as my supervisor who gave me the support and strength to push myself each day.

Amina Farhadi (’10 UNC School of Law)

2010-2011 RJ Fellow at the Asian & Pacific Islander American Health Forum

This is the second in a series of reflection posts by our outgoing (and inaugural) class of Reproductive Justice Fellows. Click here for the first entry and visit the RJFP page for more information about the program.

Has it already been a year?  Although the bar exam seems like ages ago, it feels like I just moved to D.C. to start my LSRJ fellowship.  My placement was with the National Health Law Program (NHeLP), an organization that works to further access to quality health care for low-income individuals and underserved populations, primarily by providing legal expertise on Medicaid.

Looking back over the year, I am amazed at how much I learned.  When I started at NHeLP, I knew next to nothing about Medicaid.  There was so much to learn – and I was almost certain I would never be able to grasp the complexities in this area of law by the end of my fellowship.

Then, at around six months in, things began to click.  For the remainder of my fellowship, I actively contributed to policy strategy, and I finished research in almost half the time than when I started.  It was also around this time that I began feeling comfortable training and presenting on Medicaid coverage of reproductive health care.  Better yet, others at outside organizations began calling me for advice and input on issues around Medicaid and health care reform.

Now as my fellowship comes to an end and I prepare to transition into my new role as staff attorney, I am looking forward to helping the new LSRJ fellow learn the ropes.  I am incredibly grateful to LSRJ and am proud to have been part of the inaugural fellowship class.  Thank you LSRJ!

Davida Silverman (’10, CUNY School of Law)

2010-2011 RJ Fellow at the National Health Law Program

Good news!  San Francisco has become the latest city to propose regulating “crisis pregnancy centers.”  The Board of Supervisors recently introduced a bill that would prohibit fake abortion clinics (like Bay Area-based First Resort) from using deceptive advertising practices to scare or mislead pregnant women into foregoing abortion.  As I mentioned in a previous post, these clinics are particularly sneaky because they do not represent themselves as “pro-life.”  Instead, they purport to be medical clinics, and they sometimes even offer free medical services.  As a result, they create one more barrier to accessible abortion.

CPCs might be laughable—a fake abortion clinic really is a twisted idea!—if they weren’t so widespread and well-funded.  According to Legal Momentum, a women’s legal defense fund, there are between 2,300 and 3,500 CPCs in the U.S., as compared to…get ready for this…1,800 actual abortion clinics.  State and federal governments have placed innumerable funding restrictions on abortion clinics (or have attempted to de-fund them outright). Meanwhile, CPCs (most of which are not even clinics) receive abstinence-only federal and state funding.

Furthermore, city-wide legislation may not be the answer.  Legislation similar to SF’s passed in New York City, only to be enjoined by the federal district court on First Amendment grounds.  Unfortunately, CPCs really walk a fine line—what some people see as deceptive advertising, they see as constitutionally-protected free speech.

Which leads me to my newest idea—perhaps the way to go about this is to form non-profit “crisis pregnancy centers.” Bear with me here—what if we created a clinic, purported to be pro-life, and used CPC-style deceptive advertising? (their ads seem to favor pictures of happy pregnant women and little babies)  Then, we could apply for state and federal funding.  We could call ourselves “abstinence-only”—it’s not as if we would be an actual clinic providing actual contraceptive services.  Like one CPC in New York, lwe could even set ourselves up right across the street from a Planned Parenthood.  And then…here’s the sneaky part…when women come in, we could offer them non-judgmental, medically-accurate abortion information!  Ha ha ha!!

OK—I’ll need some funders on this one.  Anyone interested?

Seriously, for more information on CPCs, visit Legal Momentum and NARAL. For information on how to avoid visiting a CPC, check out the Feminist Women’s Health Center’s website.

Sharone Assa