Early Sunday morning, Nancy begins to have excruciating abdominal pain. Immediately, she begins to worry about the health of her fetus. She wakes her husband and he rushes her to the town hospital thirty minutes away. Upon her arrival, it is determined that Nancy is miscarrying and there is no chance her fetus will survive. However, the town hospital (the only hospital within 180 miles), is a Catholic hospital governed by the Ethical and Religious Directives for Catholic Healthcare Services (Directives), a document developed and enforced by the U.S. Conference of Catholic Bishops. The Directives provide guidance on reproductive health services including surgical sterilization, family planning, emergency contraception, infertility treatment, and abortion. Though the doctors are certain Nancy’s fetus will not survive, they would not treat Nancy. They withhold this information from Nancy and continue to run painful and expensive test on her until hours later they determine there is no longer a fetal heartbeat. Under the Directives, abortions are not allowed even in cases of emergencies or when the mother’s life is at risk. In Nancy’s case, because there was still a fetal heartbeat, even though the doctors knew the fetus would not survive, termination of her pregnancy would be considered an abortion.

Though this story is fictitious, it is the reality of millions of Americans today.  One in six patients in the United States is cared for in a Catholic hospital.  Catholic institutions control 622 hospitals nationwide, the largest single group of nonprofit hospitals in the United States. Five of the ten largest healthcare systems, which operate hospitals and medical centers throughout the United States, are Catholic. A large number of these hospitals are in rural communities where these hospitals are the only health care options for the sick. The Catholic Bishops promote “natural family planning,” which means that no drugs, devices, or surgical procedures can be used to avoid pregnancy. Instead, families monitor the woman’s menstrual cycle and abstain from sex during her fertile phase.  The Directives prohibit almost all reproductive health services: contraceptives that do not promote “natural family planning” are prohibited, most treatments for infertility are not allowed, sterilizations for men and women are banned, and abortion, even in cases of rape, incest, or to save a pregnant woman’s life, is impossible to obtain. Special government exemptions, known as “refusal clauses,” permit hospitals to use religious doctrines as patient care guides while remaining eligible to receive public funding. Almost every state has some sort of refusal clause allowing individual health providers to refuse to provide abortion services. However, some states have religious-based refusal clauses for reproductive services such as birth control and sterilization.

Like Nancy, many women have no idea their local hospitals will not provide certain services to them even if their life is on the line. Further, many women do not know that these hospitals are not being held liable for the consequences of refusing to provide these services or for not making women aware of other alternatives at non religious hospitals. This is an issue that affects women all over the country and needs the attention of women universally. The more people who are aware of these lack of services, the larger an impact we can have on our country to stop merging public and religious hospitals. Reproductive justice will be achieved when women have access to the resources to have children, not have children, or parent the children they have with dignity. This is not achievable when women are being denied specific services because of practitioner’s moral beliefs. This cannot be achieved when women are not being given the information to make responsible decisions over their reproductive health with dignity and good faith in their doctors. Make yourself aware of your local hospital’s policies and your state refusal clauses.

Click here for a state directory of laws regarding reproductive health.

Erika Willis

Flags waiving, music blaring, the nearly 6,000 participants in this past New York Pride celebration meant that folks had much to be prideful for. Passing the Republican majority Senate late Friday night two weeks ago, the state legalized same-sex marriage, making it the 6th and largest state to recognize the right. Many are calling this a huge and especially important victory for gay rights, as this same month in 1969 New York City saw a police raid at the Stonewall Inn (a bar in the West Village), which ultimately helped to spawn the gay rights movement.

When I heard the news of the law’s passage, I was sitting in one of my favorite bars in Oakland with two fellow social justice advocates. The three of us clinked glasses, hugged, and hollered in the name of gay rights, human rights, and, ultimately, justice. I was on an incredible high that made my participation in the San Francisco Pride an even more important and special experience for me. It wasn’t until the weekend ended – the floats put away, ticker tape cleared, and crowds dispersed that the fog lifted and I began to ponder the possible future effects of the law.

In a New York Times OP-Ed piece entitled Marriage Is a Mixed Blessing, Katherine M. Franke points out that while many in the community have worked hard to establish the right for same-sex couples to marry, many have also been working hard to establish alternatives to marriage. For these individuals, domestic partnerships and civil unions are not a consolation prize to those not allowed to marry, but instead provide a sense of freedom that doesn’t have to conform to the one-size-fits-all rules of marriage.

This movement does not claim to be anti-marriage, but rather, pro-choice, in that commitment should not be an all or nothing decision. With the understanding that in most cases domestic partnerships are recognized to rectify the injustice of same-sex couples not being able to marry, many fear that with the passage of the new law will come the abolition of domestic partnerships. If employers offer marriage as the only option, this may mean that those currently in a domestic partnership run the risk of losing their healthcare benefits. Ultimately, these individuals will have no choice; they will be forced to either marry or lose their benefits all together.

The RJ movement focuses on reproductive oppression, rather than a narrow focus on protecting the legal right to abortion. Therefore, the central theme of the reproductive justice framework is a focus on the control and exploitation of women’s bodies, sexuality, and reproduction as an effective strategy for controlling women and communities. Controlling a woman’s body means controlling her life, her options, and her potential, and thus it can be said that controlling one individual becomes a strategic pathway to regulating entire communities.

There exists a fear that the NY law will ultimately control or oppress the gay community through these individual state sanctioned relationships. While the state may not be controlling their bodies in the physical sense, they are controlling their choice, options, and thus, their potential. Without the aid of insurance, many may find adoption and assisted reproductive techniques difficult or impossible to attain. This is severely limiting the gay community from participating in a reproductive choice.

Many have contently been living for years without the legal ability to marry and have developed their own way of loving, caring, and living together that they feel fits them better than marriage. This is an extremely complex issue that the state will not be able to resolve over night; however, it is an issue that deserves extreme consideration. Whether gay or straight, is it fair to force people to marry in order to have their committed relationships recognized and valued (in the eyes of the state)? While we struggle to find answers to the new problems the law will inevitably bring, you may find me slowly and quietly waiving my flag for the gay rights movement.

Nikki Tuttle

Those of you following Wal-Mart Stores, Inc. v. Dukes are no doubt frustrated and saddened by Monday’s Supreme Court decision, in which the Court threw out an enormous class-action employment discrimination suit on behalf of 1.5 million women. The case hinged on whether Plaintiffs could get certified as a class, by claiming that Walmart’s corporate policies created a culture of pay and promotion discrimination. The Court, however, held that there was no “common answer to the question, why was I disfavored?”

Here is why the decision will have far-reaching negative consequences: (more…)

*LSRJ brought a delegation of eleven members, alums, and staff to the annual Reproductive Freedom Day (RFD) in Sacramento. Catherine Groat, a 2L at Santa Clara Law School, decided to share her experience here.

Whenever I hear about lobbying, it’s always in this vague smoke and mirrors type of fashion. In my cartoon fantasy, picketers are swarming women and men dressed in red and blue suits as they make their way to their offices on top of a very high hill. I’ve learned, however, that lobbying in its basic form is actually just the purest form of democracy: a group of concerned citizens voicing their opinions to their government in hopes of making a difference.

As a law student, this form of advocacy is new and empowering. The ability to change laws by lobbying legislators instead of judges seems a foreign but fresh idea, and I felt at Reproductive Freedom Day that I had contributed a small piece to a larger scheme and mission that I cared about. (more…)

Disclaimer: Sara Taylor is not a constitutional lawyer or scholar. She is a third-year law student who did reasonably well in her First Amendment class. If you seek a non-biased expert assessment of constitutional claims and arguments surrounding this issue, this blog is incapable of providing one to you.

New York City just passed a law requiring crisis pregnancy centers (CPCs) and their ilk to post disclaimers regarding what services they do and do not provide. Makes sense, right? You can go to the check-cashing place and it posts its insane interest rates. You can go to a bar and see that, as a minor, you will not be served. You can watch a political campaign ad and see who paid for the spot. In these cases, you can’t necessarily see the potential bias or agenda the state is seeking to protect you from, but you can at least guess at it. Similarly, in the CPC case, you can see that it doesn’t offer certain things. If you are interested in those things, you won’t get them. There’s no judgment about why you won’t get them, the city is just worried that you might think you’ll get it, because that’s the advertiser’s goal. But, believe it or not, the constitutionality of requiring CPCs to post disclaimers is sort of under review. (more…)

Last month, the world was captivated by Egypt, and rightly so (and to an extant it still is). In less then two weeks a leaderless youth-driven revolution brought the 30-year dictatorship of Hosni Mubarak to its knees. I will not recount all the facts as they are widely known (hopefully), but will direct you to this fantastic article for a recap.

The situation in Egypt is changing everyday. Right now, there seems to be a focus on how the country should transition from an oppressive dictatorship to a democratic and/or constitutional state. For this reason, many people seem to be asking where the lawyers are and how they can assist in Egypt’s transition.

Whatever involvement lawyers will have in this process, I think it is important that RJ lawyers are a part of it. (more…)

I’d like to take an opportunity this week, as spring semester is gearing up, to reflect on a more cerebral topic: the importance of legal history to the RJ movement. Now, I know what you’re thinking: “I’ve already read Roe and its progeny dozens of times! I know what Bellotti and Casey stand for. I understand the history of the movement.”

But that’s not what I mean when I say legal history. I mean the tracing of women’s legal, social, and political rights over time. As in, over the last several hundred years.

Fortunately, there are tons of courses on this and tons more legal librarians and law professors who care about it. At Georgetown, I just registered for History of Women in the Law, and we’ve started by looking at the development of marriage as a legal institution since the Dark Ages. In a fascinating turn of events, the discussion eventually turned to an internal debate amongst gay rights activists about the benefits of fighting for marriage equality. “If marriage is this flawed social institution that has been used by men for centuries to rob women of their status as individuals, why then would gays and lesbians want any part of it, particularly in light of modern divorce rates?” You can imagine the richness of the discussion that followed.

I would urge all RJ activists to pick up a book or take a class on this important topic. We will be better advocates for it!

Lucy Panza
The views that this writer expresses are her own and should not be construed to reflect those of her past, present, or future employers.

This blog is cross-posted from ChoiceUSA’s blog.
Hannah Geyer, George Washington University Law School

So lately I’ve noticed that a lot of people categorize reproductive rights as Not Real Rights. Reproductive rights aren’t like voting, or free speech, or the right to access public accommodations. Reproductive rights are special rights, according to some – including Above the Law’s (snarky lawyer blog whose commentariat aren’t super into social justice or, um… just not being a terrible person when commenting) Ami Cholia.

Law Students for Reproductive Justice (bias alert: I’m the President of GW Law’s chapter) recently released a study that revealed that out of the 177 responding law schools, only 32 of them offered a course in reproductive rights. ATL’s Cholia wrote a post asking if lawyers-in-training really need these classes:

“Academic classes rarely give one a true representation of how the concepts we study play out in real life (think back to your middle school sex-ed class for a minute). That is usually learned on the job. You are trained to ask the right questions and argue your point effectively — a rounded understanding of law, then, should prepare you to take on a reproductive case, regardless.

Should we interpret the dearth of repro-rights courses as representative of gender-imbalance at schools and within the profession at large? Again, I don’t think so. It’s not about man v. woman or even life v. abortion. It’s about rights. And as a trained lawyer, you are taught about those rights. Reproductive rights aren’t special rights, are they?”

Call me a crazed feminist, but it seems that the “special rights” question was asked sarcastically, implying that all of us humorless wenches complaining about a lack of reproductive rights courses are being hypocritical, since men and women are equal, aren’t they? Marginalizing reproductive rights as “special” rights or “women’s” rights misses the whole point. (more…)

Last month I had the pleasure of attending a breakfast with Linda Greenhouse and Reva Siegel hosted by Harvard’s LSRJ (the Boston LSRJs are all besties and its fantastic! I strongly recommend LSRJs in other cities become bffs with each other). It was a great event where Greenhouse and Siegel spent most of the time discussing their book, Before Roe v. Wade. The most poignant part of the discussion for me was when the authors/professors/superstars spoke about how the abortion issue was injected into political party platforms in the 1972 Presidential election. The gist of it is that in the ‘72 election Pat Buchanan, a strategist for Nixon, advised the Republican candidate to make abortion a central issue in his campaign as a way to attract Catholic and social conservative voters. Specifically, Buchanan recommended that Nixon portray Democratic candidate George McGovern as someone who favors “abortion, amnesty, and acid (the drug),” even though the candidates had SIMILAR VIEWS on abortion and neither had really spoken about those views during the campaign. Nixon employed the strategy, won the election, and a “pro-life position” became as embedded in the Republican platform as small government and lower taxes, and a “pro-choice position” became as embedded in the Democratic platform as social programs and gun control.

The point to take away from this moment in history is that abortion has not always been embedded in party platforms, and in fact it hasn’t been so for that long. I.e. there is NO inherent reason why Republicans should be pro-life, Democrats pro-choice, and more importantly that abortion should be a campaign issue at all. (more…)

For many RJ advocates, the Affordable Care Act was a mixed bag. On the one hand, it covers 95% of Americans by 2014, with all sorts of improved quality measures. On the other hand, the Nelson Amendment dealt a severe blow to advocates who felt that this was a real chance to provide comprehensive reproductive health services to women.

But the politics don’t end when the President signs a bill into law. Federal agencies, in this case the Department of Health and Human Services, exercise power in implementing legislation by issuing regulations. The issue confronting HHS now is whether regulations implementing Sec. 2713 of the Affordable Care Act (the Women’s Health Amendment) should include family planning and birth control in the definition of mandated “preventive care.” Advocates are fighting for and against a comprehensive definition, but the decision belongs to HHS Secretary Kathleen Sebelius.

Birth control is preventive care. (more…)