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.

Reflections on Women’s History Month

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

Hannah Dustin is my great aunt thirteen generations removed.  As a direct descendant, Hannah’s story was as common to me growing up as any fairytale or children’s book.  In 1697, Hannah was kidnapped, along with her infant daughter and midwife during an Abenaki raid on her farm in present day Haverhill, MA.  At some point during her abduction, Hannah’s days-old baby was brutally killed by her captors when they smashed her against a tree to stop her from crying.  During a night on a small island in NH, Hannah, with the help of her midwife and a teenage boy who had been taken from another town, escaped after killing and scalping many of the Abenaki. Hannah then made her way back to her family in Haverhill, where she received a generous bounty and eventual notoriety for her actions.

In 1874, a statue of Hannah was erected on the small NH island. It is believed to be the first publically funded statue of a woman in the country – no small feat in a nation where only 8% of all outdoor sculptures of individuals depict women.[1] The island also took on the name of the Hannah Duston Memorial State Historic Site. However, like many strong, independent women, Hannah’s motives have been called into question and her legacy is wrought with controversy.  What is seen by some as a grieving mother’s desperate fight for survival and self-preservation is countered by claims that she was a vengeful, murderous women who should be seen as no more than a mercenary.

This past fall, a representative of the New Hampshire state legislature introduced a bill that would have, in response to this on-going controversy, stripped Hannah’s name from the island, returning it to its original name of the Contoocook Island State Historic Site. The bill was withdrawn once it was determined that the state didn’t actually own most of the island.

Women’s History Month provides an opportunity to reflect upon how we view female historical figures and I can’t help but wonder if this story would continue to garner so much ire if Hannah had been a man. The reductionist, ‘mercenary’ view denies Hannah’s experience justice in a similar way many would deny women their justice in the realm of reproductive health services.  By focusing on the broader context at the expense of the individual experience we are posed to miss out on the lived reality of women past, present, and future.

Removing Hannah’s name from the island would not change this discreet episode of violence within the broader context of our country’s contentious and painful history with the Native Americans and it is disappointing that this revisionist approach to history would come at the expense of one of our nation’s few female historical figures.  For now though, it appears that Hannah’s name will remain and other elements added to the landmark.  In this way, we can recognize and honor the Abenaki experience without literally erasing Hannah’s.

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?

Would I trust my partner with birth control?

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

Would I trust my partner with birth control?  Thinking of past partners the answer would have to be; yes, yes, no, maybe, absolutely not.  Which I guess mean that my answer to that question has changed over the years so it really depends. With technological breakthroughs and the eventuality of a male birth control, this is a question that will be contemplated more and more often.

Vogue recently published a story on their website where one man shared he and his wife’s exploration of this question.  While he brings up some interesting points, issues that I’m sure will cross the minds of many when tackling this question, their exploration of a male using birth control mostly reenforces gendered stereotypes, lacks real acknowledgment of how each relationship is unique as is their decisions about how to control their fertility.  When the writer of this Vogue profile & platform piece describes how he and his wife discussed the idea of a male in control of birth control more generally than just within their own relationship, he describes how his wife found the idea of “putting a male in charge of contraception” “amusing,” even suggesting “that putting the male in charge of contraception would just embolden him to have sex with random women, and riskier sex at that; unlike a condom, the pill would do nothing to prevent disease.”  Not surprisingly, these same concerns were expressed when a female birth control pill was developed.  These are also some of the same concerns that are currently being expressed about PrEP, a daily pill that works sort of like birth control but instead to reduce the likelihood of HIV transmission rather than pregnancy.  I won’t argue that social norms around sex haven’t entirely changed since the advent of the birth control pill, and while some conservatives would argue the family system has broken down, I think it’s pretty evident that monogamous relationships, marriage and family units still remain the overwhelming norm even while most women at one point in their lives use a form of contraception.  The birth control pill and other new contraceptive options have revolutionized sexual agency, allows couple’s to plan pregnancies and has been instrumental in women being able to enter into the work force.  Both PrEP and the male birth control pill could provide similarly positive social benefits.

Sure, there could be the instance where both people in a couple slip up on their pill, thinking they have double protection because they’re both using a form of birth control.  And maybe we might have to redouble sex education efforts to make sure that everyone ACTUALLY knows the only way to prevent STIs is through condom use.  But the addition of a male birth control pill as a contraceptive option, allows more individuals to take control of their fertility, allowing them to choose when and whether they ever want to become parents.  Similarly, while PrEP may not be a medication that should be recommended for everyone, it does offer one more avenue for people to engage in sexual activity while safeguarding their sexual health by reducing the likelihood that they will become HIV+.  I, for one, am all for developing more options that allow for sexual agency and overall improve the public’s health, as well as pushing forward a society in which we trust both men and women to each take actions to protect their sexual and reproductive health.

If I Were Ruth Bader Ginsburg…

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

Last week, I watched in horror as the Fifth Circuit approved a Texas law that will prevent one third of abortion providers from performing much-needed services. I had two thoughts: (1) I was reminded of the saying in Austin, TX, “The problem with Austin is that once you leave it, you’re in Texas;” and (2) if this gets appealed to SCOTUS (it did), and I were Ruth Bader Ginsburg (RBG), what would I do? If I (RBG) don’t grant certiorari,Texan women will face almost insurmountable barriers to abortion access and let’s face it this is just the latest terrible attack on access to reproductive health services; but if I do, I risk making the Texas law a model move in the war-on-women playbook.

After pondering RBG’s thoughts, I began to think about the cultural climate that produced anti-abortion sentiments today. We have movies like Juno and Knocked Up (recall “shmashmortion”) that gloss over unplanned pregnancies, and that refuse to entertain abortion as an option. But remember the ‘70s? Abortion wasn’t a bad thing. Remember Fast Times at Ridgemont High? That movie had an excellent abortion scene. Stacy has a regretful sexual encounter, she gets pregnant, and the guy (Damone, ugh.) refuses to help her pay for the abortion. But she gets one, and there’s no uproar. The outrage is correctly directed at Damone (ugh.) for just sucking overall. Let me be clear, Fast Times—the movie that features oral sex on carrots, and Sean Penn as a greasy-haired, Hawaiian-shirted stoner—handles abortion better than most of the country today. I don’t know what I would do if I were RBG, but if I were Harvey Weinstein, I would be getting at least one of my leading ladies out of maternity clothes, and into the abortion clinic.

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.

 

A Piece of Good News

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

As a reproductive justice advocate, there are many days when there is no good news.  In the midst of a government shutdown (which thankfully ended!) and the proposed 20 week ban in Albuquerque, New Mexico, we have something to celebrate.  Last Wednesday, Governor Jerry Brown signed AB 154, formally known as Early Access to Abortion, into law.

AB 154 will expand the pool of qualified and trained health professionals who can provide abortion care within the first trimester.  Currently, in California and in other states, women may need to forego early abortion care because there are no accessible providers.  For instance, in some areas of California, women have to travel five hours by train or bus to reach their provider.  On top of that, they also have to pay for child care and take time off of work.  In fact, on a related note, Texan women seeking abortion care may pay an additional $146 for this care because of the state’s 24-hour waiting period.  AB 154 will not only remove barriers to needed care but may ultimately cut the cost of abortion care, which we know is an impassable barrier for many women.

Wouldn’t it be a great democratic experience if we could replicate AB 154 in other states?  As a movement, we sometimes get bogged down in the political reality that says we can’t be proactive, let alone visionary, but AB 154 goes to show that with the right amount of patience and organizing and the right group of people, we can achieve something extraordinary.

Limbryo

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

Karla and Jacob dated 5 months before she was diagnosed with lymphoma.  Since cancer treatment would render Karla infertile, Jacob provided his sperm for a hospital to develop embryos and cryogenically store them until a later date.  Two months later, he dumped her (via text message).  Now, three years later and cancer-free, the couple is in “limbryo” as a court determines whether to grant Jacob’s injunction against Karla implanting the embryos.

Szafranski v. Dunston[1] illustrates just how far procreation has been separated from parenting – and we’ve only seen the tip of the iceberg.  The first human created through IVF in the US was born in 1981.  Since then, surrogacy and the purchase or donation of biological material has resulted in the birth of 5 million babies conceived using ART.[2]  Parenting via contract isn’t a new phenomenon – we’ve been doing it as long as adoption has been in existence.  Procreating by contract is.

But when contracts fail, potential procreators have the constitution on their side.  And there is nothing up to this point showing that Szafranski or Dunston had a contract. Szafranski’s essential argument in the case is that Dunston is violating his constitutional rights, asserting constitutional notions of privacy.  Dunston has potential contract-based arguments in estoppel or performance, but her essential stance has been that her constitutional right to become a parent trumps his constitutional right not to.  Can’t the court see that this is just Roe in reverse?

As we move towards a more artificial era of child conception, its important to take a stance on whether genetic material is used against our will. Unless there is a contract in place, there should be contemporaneous mutual consent to the use of embryos.  Just think how Dunston would feel if Szafranski wanted to implant an embryo into his wife?  I have a feeling she’d be singing a different constitutional tune.



[1] http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1122975.pdf

[2] http://anthropologyworks.com/index.php/2013/02/14/assisted-reproductive-technologies-reviewing-recent-perspectives-and-addressing-research-gaps-in-medical-anthropology/