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.

2014 New Years Resolution: Visit the Gynecologist

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Couldn’t think of a new years resolution?  I have one for you: visit your gynecologist!  Women no longer have to worry about copays, coinsurance, or having to meet a deductible before seeing a gynecologist for preventive health services.

While most plans under the Affordable Care Act have deductibles – some as high as $5,000[1] – that must be met before insurance will cover medical services, the Affordable Care Act carves out an exception to this rule when it comes to preventive care for women.  Even if a deductible hasn’t been met, women are able to receive a range of preventive services – without even having to pay a copayment or coinsurance!

Covered services include well-woman visits, breastfeeding comprehensive support and counseling, and all FDA approved contraceptive methods.You can find a list of these preventive services at healthcare.gov.

This coverage is radically paving the way for 19 million uninsured women for whom access to insurance was not previously feasible[2] to empower themselves through preventive care.  Last year a review of 66 studies concluded that access to contraception positively impacts women’s participation in education and the workforce, contributes to earning power, family stability, mental health and happiness, and their children’s well-being.[3]

Even if you do have resolutions, go ahead and tack this one on: resolve to take advantage of your new legal right to preventive care, and visit a gynecologist in your network in 2014.

If your provider tries to charge a co-payment, deductible, or co-insurance for the covered preventive services, check out this toolkit created by our friends at the National Women’s Law Center with instructions for sending appeal letters.

[1] http://www.nbcnews.com/health/consumers-beware-not-all-health-plans-cover-doc-visit-deductible-2D11794861

[2] http://kff.org/womens-health-policy/fact-sheet/womens-health-insurance-coverage-fact-sheet/

[3] http://www.guttmacher.org/media/nr/2013/03/21/index.html

Do you know about the Helms Amendment?

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

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

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

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

Country Girl Meets Urban Midwifery

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

I, like my three siblings before me, was born at home.  My mother tells the story each year on my birthday of her midwife declaring, minutes before my birth, that the loft of our log cabin was too cold to have a baby – this is how I came to be born in front of the wood stove in our kitchen. My mother’s midwife and close friend, Carol Leonard, is the author of many books including Lady’s Hands Lion’s Heart – A Midwife’s Saga. She is a foremother of the modern midwifery movement and from the moment she caught me, Carol has played an important role in my life-even writing one my letters of recommendation for the Massachusetts Board of Bar Examiners.

In the years since my birth, I have moved from my rural New England community to downtown Washington, DC, and I now find myself navigating the very murky waters of urban midwifery as I chart out my own birth plan.  How does one go about planning a home birth while living in a condo surrounded by neighbors?  Do you announce it like you might a party, slipping fliers under doors apologizing in advance for the noise that might be emanating from your apartment during a possible two-week window? Is homebirth even allowed or has it been banned by our condo association bylaws along with the hanging of our laundry on our balcony? There are also state regulations that determine the availability of midwives and much like abortion providers, the greater the regulatory burden the harder it is for women to access the services. Delaware’s regulations for example, require non nurse-midwives to have a written collaborative practice agreement with a physician but only one midwife has successfully received a permit to practice in ten years – a hurdle that echoes those faced by abortion providers all over the country.

At a recent panel at the Beyond Roe Conference, speakers reminded us that unlike the majority of our great-grandmothers who gave birth at home, today only 1% of women in the U.S. give birth outside a hospital.  Like many, my own experience has informed how I view birth.  Two of my three nieces and my nephew were born at home and the idea of a hospital birth is a foreign one to me.  Carol set the bar high for what I expect in a midwife. However, what I always viewed as a straight forward decision is now, due to my changed geography, fraught with unexpected complexities.


Making the world safe for mothers (or at least America)

Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)

Since time immemorial, I think it can be uncontroversially posed, there has been tremendous cultural pressure on women to have children. Recently, though, it seems – from a limited and particular sample of my college friends – that some sub-cultural, post-third-wave push-back is gaining traction among certain young women. In my corner of the world – a hipster-heavy liberal arts college in Portland, Oregon – it is far more fashionable to not want kids. Gracing the Facebooks of my friends are links to such vindicating gems as “Sex and alcohol make you happier than kids and religion, study finds,” or a t-shirt that reads, “Why would I want kids? I’m ENJOYING my life!” Perfunctorily scrolling through our news feeds, we’d groan in the deluge of pictures featuring babies or pregnant bellies. “Another one? Gross!” – or whatever. Against this backdrop, when I started thinking I might – might – want to someday sport a baby bump of my own, I was actually petrified to say so lest my confession meet the same deriding aversion we had leveled at those other poor parenting fools. Yet it is undeniable that the hegemonic norms in the larger society still coercively point women toward motherhood. The reasons for this don’t have to be recapitulated – blah, blah, evolutionary psychology, structure of capitalism, blah, blah – but the other side of this emerging double-bind got my attention. Why is it that some young American women are not only choosing to be child-free themselves but aggressively denouncing the reproductive decisions of others?

Could it be that mothers in the United States get really, truly screwed?

Obviously, there are much worse places to be a mother – or a woman at all – but that discussion is outside my scope. Privileged checked; onward we go. The wage gap that’s so tenacious, it turns out, can be attributed in non-trivial part to parental status – so mothers stand at a disadvantage not only to men because they are women, but to other women because they are parents. (The opposite is true for men, interestingly – Shelly Correll’s 2007 study revealed that, while potential employers responded negatively across the board to a hypothetical mother’s resume compared to that of a non-mother, fatherhood actually came with bonuses to the likelihood of hiring and the recommended starting salary.) Pregnancy discrimination is routine, despite being unlawful, with employers denying pregnant women important health-related privileges (such as access to water, restrooms, or a place to sit down) until they are forced to quit. These anti-mother biases seem to stem from, rather than any actual deficiency in the workplace productivity of parenting women, good old-fashioned prejudice (no other reasonable causes forthcoming). Mothers are stereotyped, according to Correll’s study, as warmer but less competent than childless women – even when their qualifications are the same.

I understand the impulse to push back against the status quo in this way. Rejecting the motherhood paradigm seems like a solid way to signal that women aren’t all incompetent, unreliable workers who deserve to be segregated into less prestigious, lower-paying jobs – the only problem is, the group that loses this symbolic joust is the one that’s been othered in the process – i.e., mothers. Mothers, in this model, have become a proxy for women writ large – and childless women are reaping (some of) the benefits by filling a role in the workplace adjacent to men, who typically do not have to compromise their careers for their families (although some are choosing to, and I think that’s swell). Perhaps a more productive (and RJ-driven) way to transmit the same message would be to implement policies to benefit employed mothers, as Sweden, Norway, and some other countries have done. Honoring the needs of new parents rather than treating them as detriments would be better for mothers, fathers, and children, and – crucially – could help to lift motherhood out of its devalued status by showing that we, as a culture, respect women’s choices – at a bare minimum, enough not to penalize them for making the very choice our society encourages them to make.

Dangerous Data

Rosie Wang, Resident Blogger (’14, Columbia Law School)

The Utah Senate has passed SB60, a bill that would force health care providers to collect information from women seeking abortions on their ethnicity, the stage of pregnancy, and the reason given for the procedure. While the federal government already provides this data, this bill is a preventative measure to ensure that even if federal government changes its approach, Utah will still have access to this information. This is troubling because the sponsor of the bill, Senator Margaret Dayton, has previously expressed interest in challenging race-selective abortions as well as targeting specific cultural preferences that supposedly give rise to sex-selective abortions. The information sought to be gathered by SB60 sounds like it could be a stepping stone to a number of racially charged campaigns that disguise their anti-abortion agenda with a veneer of concern about women and people of color. This is a strategy that has been attempted before, with billboards accusing black women who seek abortions of committing genocide. This bill also sounds like a precursor to so-called “Prenatal Non-Discrimination Act” or PRENDA, which would have required health care providers to report women they suspected of seeking an abortion for reasons based on the fetus’ gender or race. PRENDA purported to be pro-women but was actually a way to both scrutinize and stereotype women based on race and create arbitrary obstacles to abortion access.  PRENDA failed in the House of Representatives last May.

Senator Dayton’s assumptions about the makeup of society and people’s ability to function within it suggests that she is not aware of the effects of being denied reproductive choice. It is her stated belief that the “traditional family is the fundamental unit of our society” is blind to the fact that “traditional families” account for only 7% of the US population. It is her belief that “personal initiative is better than government programs,” when unplanned pregnancy perpetuates the cycle of poverty. Dayton’s focus on personal initiative sounds like another way of saying that she would not be in favor of investing in programs targeting poverty, hunger, and poor health outcomes that would help women considering abortions post-pregnancy. Legislators who ignore the reality of family structures and what it takes to sustain them can hardly be presumed to be using this type of information to the best interest of women.

Django Rechained

Rosie Wang, Resident Blogger (’14, Columbia Law School)

Going into the midnight premiere of Django Unchained, the only real context I had was that (1) It was a Quentin Tarantino movie and (2) in Spike Lee’s opinion, it was racist. Coming out of it, I thought, “Wow, that was breathtakingly racist.” And not because of the copious use of racial slurs (which is what Mr. Lee objected to).

There’s something much more subtle and insidious in it’s portrayal of slavery: It adopts wholesale and without irony some of the worst plantation tropes and erases and reinterprets the historical narrative of black women’s lack of reproductive autonomy.

In Django Unchained, a German bounty hunter frees a slave, Django and partners up with him in capturing criminals. Django is dedicated to finding and rescuing his wife Hildy, who now belongs to a plantation owner who has male slaves killing each other for sport. It’s supposed to be okay for Tarantino to write and tell this story because it is a revenge fantasy of slaves rising up against their masters and thus subversive and empowering. However, there is a lot that goes wrong in the execution of this idea.

The black body is on sensationalistic display in a way that no white body equivalently is. Hildy is put in the “hot box” for trying to run away, and has water splashed over her nude body when she is released. Django is suspended upside down, naked and about to be castrated after his true intentions to save his wife are revealed.  Nearly naked black men fighting to death appear on screen multiple times. These are fraught images because the institution of slavery viewed black women’s bodies as  open for sexual consumption and black men’s bodies as threatening and open for torture. The way Django Unchained offers images of naked black bodies for visual consumption is exploitative and revels in the morbidity of the scenes, rather than aiming for historical accuracy.

With no historical background knowledge, someone watching the first scene depicting a plantation might think that a black woman’s life under slavery consisted of swinging on oak trees in hoop skirts – as long as she didn’t try to escape. In reality, coerced reproduction and rape is the way that slavery was sustained and slave owners’ wealth multiplied after the 1807 ban on the slave trade. The monetary worth of slave women being auctioned was determined by speculations on her reproductive capacity. Slave owners would pair their slaves with multiple partners and force them to engage in sexual activity without regard for any person’s consent. Slave women were especially vulnerable to sexual assault by their masters and the resulting children from such rapes were targets of violence by the master’s wife.

Harriet Jacob’s narrative of her own experience, Incidents in the Life of a Slave Girl describes her 55 year old master beginning sexual advance on her when she was 15. She eventually forms a relationship and has two children with another white man as the only method for escaping him. Children were often sold away from their mothers, dashing any potential of forming family bonds. Hildy is 27, and some mention is made of her role as a sex worker, but the very real reproductive consequences are never addressed. The legacy of all this is an entrenched distrust of the medical system among many black women which leads to poor health outcomes and the stereotype of not being able to be trusted to make their own reproductive decisions.

Anything but Delicate: Alabama’s Solution to Substance Abuse During Pregnancy

Josie Sustaire, Resident Blogger (’14, University of Oregon School of Law)

Suppose a woman chooses to have a child.  Suppose that she elects also to raise the child after it’s born.  You may be thinking, “Great.  Good for her.”  But suppose that the woman also happens to be addicted to drugs.  Are you still excited for her?  Is she any less suitable to invoke her rights?  What should be done?  Legislators in Alabama have answered these questions by prosecuting women who expose their children to drugs while pregnant.  The Alabama statute, Ala.Code 1975 § 26-15-3.2, was originally put on the books to protect children from exposure to meth labs.  However, the law has been expanded through litigation to encompass fetal exposure to drugs in utero, essentially offering legislator’s a backhanded way of circumventing a woman’s rights.

“Laws concerning a pregnant woman’s treatment of her fetus are not without precedent,” Ada Calhoun points out in her New York Times article on the subject.  “Since abortion was legalized in 1973,” she says, “hundreds of women across the country have been arrested for harming their fetuses, with charges ranging from child endangerment to first-degree murder.  Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, a New York-based reproductive-justice group, predicts a grim future if laws like Alabama’s stay on the books.  “Everyone talks about the personhood of the fetus,” she remarks, “but what’s really at stake is the personhood of women.  It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.”

And, as if to add insult to injury, medical research has shown that quitting cold turkey while pregnant can be fatal to the fetus.  So, that same hypothetical pregnant woman who abuses drugs, if she has access to adequate medical care, may be told by a medical professional that she should not quit but rather should maintain acceptable levels to avoid miscarriage.  Given the research, maintaining low levels of the drugs in order to save the fetus seems much safer.  BUT if the state that the woman lives in has a law like Alabama, she will still face criminal charges once the baby is born and traces of drugs are found in the baby’s system.

There must be something we can do about this.  We must find a way to reconcile the rights of women with the interests of the state in ensuring the health and safety of infants.  Why does a woman’s rights have to be sacrificed?  How can Alabama legislators believe that two wrongs can make a right?  What we can be sure of is that Alabama has no plans of backing off.  Over 60 women have been incarcerated for child endangerment and the legislature has submitted proposed amendments to the statute to explicitly apply to in utero exposure.

Now don’t get me wrong.  I love the babies.  I want what is best for them.  But how can locking their mother up for 10 years (mandatory sentence in Alabama is 10 years to life) because she is a drug user be the best option?  Sure she should not have used drugs while pregnant, but hindsight’s 20-20 and what’s done is done.  What can we offer her moving forward?  Drug treatment options seem like a much more beneficial option.  I would also encourage changing regulation of methadone clinics due to the risk of methadone exposure to fetuses.  There may not be an easy solution, but we certainly can’t go on like this.

Note:  The Guttmacher Institute has a state policy pdf that states “No state specifically criminalizes drug use during pregnancy,” and I have submitted a request for clarification and am currently awaiting their response.


Doula-ing the Movement Forward

JoAnna Smith, Emory University

During the first day at the Leadership Institute, we discussed how the reproductive justice model differs from other frameworks for reproductive rights or social justice.

It made me think back to when I was working as a labor doula before law school.  A labor doula is a trained and experienced professional who provides continuous physical, emotional and informational support to a woman before, during and just after birth.  A doula learns that she is there to help the woman have a safe and satisfying childbirth as the woman defines it. It is not the role of the doula to discourage the laboring woman from her choices, nor to project their own values and goals onto her.

As a doula, I was required to listen more than I talked.  I learned to encourage women to ask questions and get information rather than doing it for her.  I learned that I couldn’t possibly understand all the circumstance of another woman’s life that drive her to make the decisions she does, but that I should do everything in my power to hear her and help her achieve those choices.  I learned to work behind the scenes, providing valuable skills and resources when needed, but never taking the spotlight away from those who really mattered: the woman, her family, and supporters.  Outside of the birthing room, I advocated for changes in a complex system of institutions, laws, and circumstances that make it difficult for women to have the birth they knew was best for them.

What I heard during the RJ 101 session made me think hard about the role of an RJ lawyer.  In law school we learn how to be the interpreter of the law and the one who gives advice.  We are taught to stand up in front and speak confidently.  We are taught to be, or at least act like, the experts our education prepares us to be.

But the reproductive justice framework asks us to focus on the intersections of race, class, sex, age, sexual orientation, gender expression, immigration status, and ability and how they impact access, agency, and autonomy in shaping one’s reproductive destiny.   It shifts our role from achieving a right or winning a case for someone to one that requires us to listen and to act only once we attempt to understand those we serve.  It asks us to work with communities as allies, strategists, and advisors to overcome the complex systems, laws, and circumstances that make it difficult for people to have the reproductive destiny they know is best for them.

We must be doulas in the reproductive justice movement.

I am incredibly honored to be at the L I with so many soon-to-be lawyers who will continue to doula this movement, and those it affects, forward with compassion, grace, and integrity.

The American Dream, Interrupted.

Rosie Wang, LSRJ Summer Legal Intern

In many ways Bei Bei Shuai’s story sounds like my mom’s. Both women were raised in large Chinese cities, in households where both parents worked. Both came to the United States, following partners with promising job prospects. Both worked in Chinese restaurants while harboring plans to improve their English and get graduate degrees. It’s the story of many Chinese immigrant women, but Ms. Shuai’s narrative diverged when, at eight months pregnant, she was abandoned by her boyfriend who, it turns out, had another family.

Suffering from major depression, Ms. Shuai ingested rat poison as a suicide attempt and was rushed to the hospital by friends. She consented to all treatment to save her life and her pregnancy, but while she survived, but the baby she gave birth to died after a few days. She was charged with murder and attempted feticide while still hospitalized for an emotional breakdown and then spent 435 days in prison. She is now out on bail, but paying for a GPS-enabled ankle bracelet that will cost her $2500 until her trial.

What is wrong with this picture?

Well, what part of what Bei Bei Shuai did was criminal? Suicide is not a crime in Indiana and the law used to charge Ms. Shuai with feticide was targeted at third party attacks on pregnant women, not abortion. This particular interpretation of the law is the result of a swelling segment of anti-choice advocates who want to give fetuses separate legal personhood. This in turn criminalizes the behavior of pregnant women and subjects them to investigation for miscarriages or poor birth outcomes. Pregnant women would become a separate class with fewer rights.
Second, criminal penalties hardly seem like an effective deterrent to actions made under extreme emotional disturbance. That just isn’t how mental health works! Instead there needs to be careful screening and medical treatment for the 13-20% of women who experience depression while pregnant, and the 30% of depressed pregnant women have suicidal ideation.
Finally, let’s go back to the familiar story of Ms. Shuai’s immigrant experience. Many media outlets have portrayed Ms. Shuai sympathetically, but this sympathy can misguidedly stem from referencing the model minority myth rather what is owed to all women. The one interview with Bei Bei Shuai currently online shows her answering the questions about her family, her hopes upon arriving in America, and how she spent her time in prison. She answers that she came to the US wanting independence and an MBA, has been taking classes in prison, and is still strongly determined to live in America.

Together, Ms. Shuai’s optimistic answers and lack of hard feeling toward the American justice system form a perfect narrative of the grateful, educated, and ambitious immigrant. It seems to announce to white viewers, “Hey! She might be a foreigner and a woman of color, but she’s middle class, loves this country, and believes in its bootstrapping principles! We can sympathize with her and thus she deserves better!” But the insidious implication in the media constructing this type of narrative is that only people who have lived “perfect” lives up until that point — those who can answer those questions as Ms. Shuai or my mother would — are entitled to bodily autonomy and freedom from state intrusion into their private grief. And even if Bei Bei Shuai’s Chinese upbringing might look like a non-threatening analogue of the stereotypical American family, 34% of American children actually do not live in a home with two married parents. Many women from these families are especially vulnerable in terms of the ability to access health services and will see their rights stripped away by fetal personhood statutes. Bei Bei Shuai is admirably resilient and positive and her story demonstrates how even women who have conformed to the mainstream can become victimized. But women who do not fit that profile, who might be undocumented immigrants, on public assistance, raised in nontraditional families, angry about the way American society has written them off, all deserve justice and dignity just as much. It’s a basic human right.