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.

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.

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.

I’m a fan of birth control and religious freedom

Melissa Torres-Montoya, Resident Blogger (’11, University of California, Berkeley School of Law)

Admittedly, I’m a huge fan of March Madness. I jumped on board with the madness; making the effort to watch my favorite team (go Bruins!) specifically at the bar that serves as DC’s “official” UCLA bar, hanging out with friends who had brackets so we could enthusiastically and nonstop talk/compare our brackets, and basically addictively watching the games.  While this March Madness is at the end of the day all fun and games, the real madness that is going on this March is the Supreme Court hearing of Sebelius v. Hobby Lobby.
The precise legal question has to do with religious freedom.  As this National Public Radio piece points out, the legal standard for whether a law infringes upon the constitutionally granted right from laws “prohibiting the free exercise” of religion has changed over the years.  And this summer the Supreme Court will issue its decision as to whether  the new law requiring employers to provide health insurance that includes coverage for contraception poses a substantial burden on the corporate owner’s of Hobby Lobby’s right to free exercise of religion and whether as corporate owners they even have such a legal right.  The madness in this all, for me, is the non legal question here is that, for some, the question exists as to whether contraception is even considered a preventive health measure.  
Former Bush administration Solicitor General Paul Clement bemoans that “The federal government for the first time has decided that they are going to force one person to pay for another person’s not just … hip replacement, but something as religiously sensitive as contraception and abortifacients.”  Hobby Lobby, of course, would never challenge coverage of a hip replacement for a 75 year old employee who fell down the stairs.  Nor should they challenge the use of a medication by a 34 year old fertile woman to prevent pregnancy, a medical condition that changes a woman’s body so that she’ll grow a whole new human within her.  According to the world health organization family planning, “allows spacing of pregnancies and can delay pregnancies in young women at increased risk of health problems and death from early childbearing, and can prevent pregnancies among older women who also face increased risks.”  Spacing of pregnancies, as experts at the Mayo Clinic describe, has medical implications.  So yes, contraception is just another medical treatment that should be included in health insurance coverage as routinely as say, a hip replacement or high cholesterol medication. Hopefully, a majority of the justices see it the same way and publicly identify contraception as a critical, routine and medically accepted preventive health measure.
Today, the Supreme Court is listening to oral arguments on this case and like most women in the U.S., I oppose Hobby Lobby’s attempt to carve out some contraception from the health insurance plan it provides its employees. I’m publicly acknowledging today that I’m a fan of birth control and religious freedom.  You should too.  Make your new cover page this or pledge your support here.

Getty Images & The Lean In Collection – There’s Room to Lean Further

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

Last month Getty Images, in collaboration with Facebook CEO Sheryl Sandberg’s LeanIn.org nonprofit foundation, launched over 2,500 new stock images aimed at depicting “female leadership in contemporary work and life”. As a collection, the images are a beautifully composed collage of picture perfect women, girls, families, and friendship. However, taken individually, some of the images may perpetuate a problematic oversimplification of what it takes for women to thrive in the corporate world.

A number of the images play with the work/life balance motif, showing thin, stylish women in contemporary work and home office settings.  In an interview with NPR, Getty’s Pamela Grossman discussed how these images were intended to present an updated and more dynamic vision of motherhood.

“The older model would be that … the mother looked incredibly harried, and she would be juggling a dinner plate in one hand and a baby in the other. Sometimes even more arms would be Photoshopped onto her to show just how indeed she was juggling it all.”  Grossman compared this outdated model of a multitasking mom with that depicted in the LeanIn Collection, “They really feel like they have contemporary style, and they’re engaged and energetic.”

Although the intent behind the collection is admirable, it is hard not to question whether this contemporary view of working mothers may be setting an unobtainable bar for those of us contemplating or trying to balance motherhood with a career.  In a country where income inequality continues to grow and women face a wage gap of $.77 to every dollar earned by a man, where most lack access to paid maternity leave, where the glass ceiling and maternal wall are still very much intact for women pursuing corporate leadership, and where female attorneys represent less than one-third of lawyers at law firms (a number that has actually been dropping for the past four years), the new Collection presents a picture that is hard to reconcile with the reality working mothers face.

Many of the images of working mothers show them sitting at their immaculate desks, working on their laptops while young children balance on their knee or sit serenely nearby. How do these women manage to keep their children from grabbing at the laptops, pouring coffee over the keyboards or pulling on their dangly earrings and perfectly coiffed hair?  Where are these women supposed to be?  Certainly not at work-I have no data on this but I bet there are more dog friendly offices in the U.S. than child friendly.  So are these mothers supposed to be representing the women who are fortunate enough to have a flexible working schedule that allows them to work from home? If so, they must be wealthy enough to afford housekeeping because their offices are immaculate with few or no toys in sight for their perfectly behaved children.

Although the collection does include women of various ethnic backgrounds and ages, it fails to move past the model thin and designer dressed. The idea of a more “contemporary” working mother is nice, but at the end of the day these are stock photos used to depict artificial scenarios in order to sell a product or service, or to communicate a point of view or sentiment..

To claim that the Collection serves a loftier dual purpose is an overreach and I question whether these images of the “contemporary” working mother are actually an improvement upon the traditional multi-armed multitasking mother. What woman can possibly live up to the unrealistic standards these images depict while trying to succeed in a world where working women continue to be discriminated against because they are mothers. The Collection’s embrace of the unrealistic while touting it as “empowering,” left me feeling just the opposite – how will I ever be able to obtain such a lifestyle while balancing my legal career with the needs of my family?

Republicans State of Abortion Address

Christine Poquiz, Resident Blogger (’12, University of California, Davis School of Law)

After celebrating the 50th anniversary of the “War on Poverty” and on the day of President Obama’s State of the Union address focusing on the economy and poverty, what do House Republicans spend their valuable time on? You got it–abortion. Like voting to repeal Obama care for the 40umpteenth time, Republicans dogged focus on anti-abortion measures, that won’t reach the Senate, are infuriating to say the least. Republicans are once again obsessed with denying women the ability to make their own personal reproductive health decisions. If the all-male HR7 hearing is any indication, instead of waging a war on poverty, Republicans are waging a war against poor women who aren’t able to pay for abortion care.

HR7 deemed the “No Taxpayer for Abortion Act” is an extreme abortion ban that withholds coverage from virtually all women in the U.S. There are current laws that ban women who use Medicaid as their insurance, to cover their abortion care. This law would extend this coverage ban to both public and private insurance companies. There was even an original “rape audit” provision that would require women to prove to the IRS their rape or incest circumstance in order to get insurance coverage for their abortion. Conservatives took this portion out of the bill to make it seem more palatable, believing that the other provisions of the bill are that much more reasonable.

There was one highlight of the hearing, and one of the few moments I was not yelling at my computer screen, when Democrats stepped up and used this opportunity to talk about real issues our country is facing, like unemployment and the job market, instead of this anti-women absurdity. The optics of democrats lining up and repeatedly insert their statement into the record “in support of extending unemployment insurance for 1.6 million Americans instead of this radical Republican assault on women’s health care rights,” was right out of the conservative play book.

After the Republican controlled House passed the measure 227-188, the GOP undoubtedly wanted to show that they do support women and chose Rep. Cathy McMorris to give the party’s rebuttal to Obama’s State of the Union address. McMorris brought up abortion (shock!), an issue that didn’t come up in Obama’s address. McMorris talked about her own personal circumstances, how she and her husband have a son with Down syndrome who has been able to thrive, and therefore abortion should not be a viable option for other women. It is wonderful that McMorris’ son is doing so well and I’m sure their family has their share of struggles. I hope nothing but the best for her family, but not every woman will have the same experiences and resources, it is simply not a reason to make pregnancy decisions for others and their families.

However we feel about abortion, politicians shouldn’t be allowed to deny a woman’s insurance coverage for it just because she’s struggling to get by. When it comes to the most important decisions in life, such as whether to become a parent, it is vital that a woman is able to consider all her options–including an abortion–even if she is poor. Instead of sweeping bans, it’s time for Congress to lift the restrictions on abortion coverage so women can make decisions based on what’s best for their circumstances.

Roe: One Con Law Experience

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

I had been dreading and yet also looking forward to this con law class for months – the class on Roe v. Wade. The attacks on Roe were the reason I came to law school. I meticulously read the opinion the night before, and steadied myself for a battle. But the class came and went without so much as a 1L wincing at the word “abortion,” which turned out being the worst case scenario – Roe passing by as just another case to remember for the final.

I looked back at the (truncated) case in my textbook and realized that all of the fervor from the opinion had been sucked dry. There was nothing from the original opinion on the incredible hurdles that women had transcended to get an abortion, or on the devastating effects unplanned pregnancies had on women who were forced to carry them to term. Or just as importantly, there was no discussion of the federal and state policies put in place since Roe that have made it so difficult to access abortion that Roe is practically moot.  Instead, my 1L con law class read a few legalese passages on the “penumbra” of privacy rights. So for Roe’s anniversary, as a LSRJ chapter leader at my law school, I hope to bring the real Roe story to my classmates – that it’s not just a case to memorize for the final, its about women and our right to control our bodies

Roe v. Wade: A Reminder That We Deserve More

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

I first learned about Roe v. Wade as an eager, nerdy, middle school student. No, it was definitely not covered in my history classes and it was barely discussed in my constitutional law class. I learned about it because my Latina mother introduced me to the world of feminism and feminist heroes at a young age. When I first learned about Roe, I was amazed and thought it was the best thing that ever happened to the women’s movement.  As each anniversary passes, I’m less amazed and more circumspect about the meaning of Roe. I know now that we have a long way to go before we achieve full equality and justice for all women, including transgender men. Roe is not the pinnacle of our movement, but it is a starting point.

Since Roe, it’s relevance to women’s lives has become somewhat diminished due to relentless political assaults.  In 1976, Congress passed the Hyde Amendment, which is an almost total ban on abortion coverage for women who qualify and are enrolled in Medicaid, making abortion inaccessible in practice for low income women of color.  It has continuously been reauthorized in each federal budget.  Lack of insurance coverage for abortion care isn’t the only barrier for many women.  Several states have passed laws to “regulate” abortion care, again effectively making it inaccessible – take for instance TRAP regulations and laws pertaining to misoprostol.  Then, we have issues of accessing care – many women live in areas of the country where there are no abortion providers and they do not have the means to travel to the closest abortion provider,sometimes hours away. And’s let not forget about Casey and the “undue burden” standard.

Finally, transgender men who may need abortion care may not receive the care they need because of the lack of culturally competent providers in general for this community, let alone providers who are trained and licensed in providing abortion care.  Not to mention the fact that transgender and gender non-conforming persons also face high rates of discrimination and violence, even in healthcare settings.   

So yes, let’s celebrate Roe v. Wade, but the next day we need to get back to work.   

Reflections on Roe: Out of Clinic Violence and Ash Rises a Reproductive Justice Advocate.

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

McCullen v. Coakley, the case that could decide the constitutionality of all abortion clinic buffer zones, was heard by the Supreme Court less than two weeks before the forty-first anniversary of Roe v. Wade. The plaintiff was well chosen, a “grandmother” figure not immediately fitting the image of intimidation and violence that the zone around the Boston clinic was set up to protect entrants from.  Last year the Massachusetts buffer zone was upheld by the First Circuit Court as a way to mitigate “the persistence of a disorderly and threatening climate at facility entrances.”

Perhaps the plaintiff herself believes that she poses no risk to the women she encounters, but within the larger anti-choice/pro-choice movement she is allied with those who do. Boston knows well the devastation of clinic violence where, in 1994, two health workers were brutally murdered while serving their clients.

My own experience as a health worker was born out of the ashes of a local clinic – I was inspired to join the health center’s staff shortly after its offices were firebombed.  The subsequent arson investigation remains open. Clinic violence is a daily reality for those of us trying to ensure that the rights granted by Roe remain accessible to women of all ages and incomes.

Thirty-five feet is all that stands between a peaceful protest and a clinic blockade.  Even with the buffer zone, insults, photographing, and threats of religious retribution create a culture of intimidation whether the conservatives on the Court recognize it as such or not.  So on this anniversary of Roe, remember those who work behind bullet-proof glass, and their clients: women and men brave enough to make a decision for themselves and their families despite anti-choice protesters subjecting them to religious rhetoric, hateful name calling and other forms of aggression.