Pregnant in a War Zone

Sasha Young, LSRJ Summer Intern (’16, Northwestern School of Law)

A couple of years ago a dear friend of mine had her dream wedding “back home” in Palestine. She’s now battling the Atlanta heat through her first pregnancy, and with the recent surge in violence in the Occupied Territories, I thought for the first time what it would have been like for her to be pregnant “back home.”  The Occupied Palestinian Territories are fraught with human rights situations. I’ve thought about many of the different aspects before, but before I imagined my friend, I had never really taken a reproductive justice lens to the conflict. Immediately, my mind jumped from sexual assault, to access to abortion services, to getting maternity care in a place where sanitary napkins were only recently removed from the list of blockaded items.

The implications for pregnant women are predictably scary. An investigation into the 2008-2009 siege in Gaza revealed horrifying stories of women walking for miles through heavy shelling to find safe places to deliver. Hospitals prioritize the injured, travel is nearly impossible, and physicians are overwhelmed by trauma injuries. One woman, Dalal, recounted her doctor shouting at her for putting the ambulance driver’s life at risk when she should have delivered at home. Another woman, Rula, recounted walking alone for more than an hour in active labor only to be turned away from the hospital because there were too many injured people and not enough staff. Another report found that between 2000 and 2007, ten per cent of pregnant Palestinian women in the Occupied Territories were forced to give birth while stopped at Israeli checkpoints. Of the 69 documented births, 35 babies and 5 mothers died.

Obviously Occupied Palestine is not the only place where women are pregnant and give birth under violent and dangerous conditions. Stories like these are undoubtedly repeated throughout Syria, Congo, Timor, and every conflict zone in between. The immediate trauma of violent conflict leaves practically everything else as “collateral damage” of war, but I suppose this is just a little known bullet point on a long list of reasons we need a sustainable solution to the conflict in Israel and Palestine.

Anti-shackling Laws and Fetal Rights – Finding the Common Ground

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

The “Birthing Justice” panel at the recent Civil Liberties and Public Policy Conference at Hampshire College celebrated Massachusetts’ recent success in passing an anti-shackling bill.  It also highlighted the dangers inherent in treating pregnant people differently from non-pregnant people. These two issues, at first seemingly at odds with each other, point to an important lesson for those pursuing the protection of pregnant people forced to give birth while in state or federal custody – as important as anti-shacking laws are, it is crucial that they be drafted using language that empowers the pregnant woman rather than in a way that protects the unborn fetus.

Fetal separateness laws ultimately convey legal rights upon the fetus, often from the moment of conception. As Lynn Paltrow, Executive Director and founder of National Advocates for Pregnant Women has explained, there is no way to grant rights to an egg, embryo, or fetus without diminishing the rights of the pregnant person. Over the last three decades, hundreds of women have been charged with crimes due to pregnancy related conduct and we have seen the application of existing criminal and civil child protection laws upon pregnant women in unprecedented ways.

For example, pregnant women who test positive for drugs have been charged with assault with a deadly weapon – the deadly weapon in these cases is the drug and the assault is the in-utero transmission of that drug from the woman to her fetus. Pregnant women have also been charged with contributing to the delinquency of a minor, unlawful child neglect, and child endangerment. Even women participating in government sponsored methadone programs have had their newborns taken away due to in-utero “abuse” when the baby tested positive for the drug. Certain conduct including attempted suicide as well as being HIV positive, has subjected pregnant women to charges of murder, feticide, and sentencing enhancement triggers. Late last month, Tennessee passed the nation’s furthest reaching law, a law that subjects any woman struggling with drug addiction to criminal prosecution based upon her pregnancy outcome.

The creative application of laws upon pregnant people is not only destructive to maintaining family unity but is also counterproductive in assisting with any mental health issues or drug addictions the pregnant person might have.  As Paltrow explained in a recent interview with NPR, “The biggest threats to life, born and unborn, do not come from mothers. They come from poverty, barriers to health care, persistent racism, environmental hazards and prosecutions like these that will frighten women away from getting help from the problems they do have.”

The shackling of pregnant, laboring, and post-natal inmates has been outlawed in eighteen states. When asked about Massachusetts’ pending legislation, Megan Amundson, executive director of NARAL Pro-Choice Massachusetts stated, “Shackling pregnant women is unsafe and inhumane, and it is shocking that this barbaric practice continues today.”  As prisoners rights advocates understand, shackling any human, pregnant or not, is inhumane and barbaric but while we wait for greater criminal justice reforms, we must remain vigilant.  As anti-shacking legislation continues to gain momentum, it is incumbent upon reproductive justice advocates to ensure that such laws are constructed carefully so as to protect women’s rights while avoiding language that would strengthen fetal separateness jurisprudence. For not only do fetal rights laws potentially curtail abortion rights by establishing dangerous precedent but they also create a maternal-fetal conflict by pitting the woman’s autonomy, right to privacy, and right to bodily integrity against those of her fetus.

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.