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.

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.

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.

Ash Moore, Resident Blogger (’14, University of Oklahoma College of Law)

The recent tragedy in Newtown, Connecticut has created a lot of reactionary political push from the left for more gun control. I own multiple guns. I believe the second amendment is broad and sweeping. I believe it is one of the secured rights that makes this country unique and legally superior. However, I also think the implicit right to privacy in our Constitution that is necessary to fulfill the promises of the second amendment and others, is also an important secured right.

This right is what Roe v. Wade was based on. After the recent 40th anniversary and discussion about the ever-increasing restrictions and regulations, Newtown got me thinking. The right wing trusts every American who can walk and chew gum with guns. But they don’t trust an educated woman to make choices about her own body and family (including but not limited to abortion). On the other hand, the left wing wants the government to trust every American who can walk and chew gum with decisions about the most important building block of society, the family.

I remember coming to law school thinking of Justice Scalia as a cold-hearted, heinous Justice who sought to disenfranchise the American people (my parents are pretty liberal criminal defense attorneys). But the first case I read in law school had an opinion by Justice Scalia that I agreed with. I immediately called my mom in tears thinking something was wrong with me. She consoled me, but was obviously upset by the news. She asked me what the name of the case was and when I told her it was DC v. Heller, a gun rights case, she sighed some relief and said, “calm down, Idiot. That’s different.”

Before too long I realized she was right, but I still don’t understand why. Why is it encouraged for political parties and individuals to tailor their arguments to the outcome they want? Why is it encouraged for politicians to flip-flop their reasoning but not their outcomes? There is a lot I don’t understand in this world. I don’t know why they leave chip bags two-thirds empty or how they get those ships in those bottles. But I thought I understood the Constitution.

I know argument exists over the proper way to interpret the Constitution. But I didn’t know people reasoned backwards to get the result they wanted out of it. I believe the political parties should take a stance; you either trust the American people to make their own choices and properly exercise their rights, or you don’t. But you don’t get to pick and choose which rights they get control over. Whether the discussion is about gun or reproductive rights, the argument will always turn to the power over life and death. But I think all the mudslinging and buzzwords cloud the bare bones arguments. Probably intentionally.

The only thing better than being a Texan is being an American. There are a lot of things wrong with my state and my country. But as a patriot, it is my job to question when appropriate and defend when needed. I am a second class citizen in a lot of ways. But I believe in this country and in the people who make it up. That’s my stance. What’s yours? Do you trust me and others, or not?

Elisabeth Smith, Resident Blogger (’14, University of Washington School of Law)

Over Christmas my cousins and I were watching television and we just kept flipping channels until we got to TLC and saw some women dressed up in 1950s garb turn from black and white to full color. Heard of Wives with Beehives? The show is basically a Real Housewives variant, but all the women live a “vintage lifestyle”. Other people have talked about the show, but I want to highlight something besides its antiquated notions of gender roles.

All of the women go on and on about the magic of the 1950s.  Dollie calls the 50s “a very romantic period. It’s romantic to have a husband [who] you love, and beautiful children [who] you take care of and a beautiful home you take pride in.”  Here’s where I take issue with this show. Traditional gender roles aren’t my cup of tea, but a show about 4 white women mooning over the romance of the 50s without any recognition that the decade wasn’t all moonbeams and starbursts for everyone is gross.

Let’s start in reverse order. The home.  After World War II, “FHA underwriters warned that the presence of even one or two non-white families could undermine real estate values in the new suburbs. These government guidelines were widely adopted by private industry.” [Click here @ 1:30:55]  So if you were a white GI you could take advance of the GI Bill and get a home in the new suburbs. A GI of color had far fewer options. As Dalton Conley, a sociologist, a points out “basically, the whites moving to the suburbs were being subsidized in the accumulation of wealth, while blacks were being divested.” If a beautiful home is one component of the magical 50s, it was out of reach for many people.

Okay, two: beautiful children with whom you spend your time. In the 1950s, African American women worked outside the home in large numbers so they if they spent their day with children, those children probably weren’t their own.   Another statement made by one the “Wives with Beehives” underscores this reality. When the women discuss whether any of them have dishwashers, one replies “I don’t need a dishwasher, I have Maria.”  Wow. So living a vintage lifestyle also includes vintage racism!

Yikes, people, yikes. I get that these women have chosen to make the 50s their thing, but seriously, what we say on tv does have effects.

Elisabeth Smith (’14, University of Washington School of Law)

My passport expired on June 12, 2012.  In the 10 years I carried that passport, I lived in Japan and traveled across Asia, Europe, South America, and Africa. Leafing through the pages reminds me of amazing full-color adventures: interesting people, delicious food, different languages, widely varying experiences and opinions.

When I flipped through the pages of my new hyper-American passport, I saw something radically different. No diversity, no nod to different experiences or differing perspectives. The United States as depicted in our current passport (established in 2007) has no cities, no minorities, and no women. True, there are quotations at the top of each spread and exactly one comes from a woman, one from an African-American man, one from a Japanese American, and one from an unattributed Mohawk Thanksgiving address. All the others are from white men or from documents written by the Founding Fathers. The U.S. as seen in the illustrations includes white men, both as figures and as faces carved into Mt. Rushmore, mountains, cactus, buffalo, eagles, oxen, longhorns, salmon, unidentified birds, the Atlantic, the Mississippi, a lake, and the moon. The white men fight the British, till a field, and herd the longhorns. The only industrial depictions are a steamboat, a plow, the railroad, and, on the back inside cover, a space satellite.

Where am I in that depiction of the U.S.? Where are women of color? Where are Asian-Americans? Where are Latinos? Where are African-Americans? Each of the illustrations obliquely reference a more complicated history, but never depict that history. Who built the railroad? Chinese immigrants. Whose ancestors were forced to come to this country in ships? Who lived in concert with the bison and who shot hundreds of thousands of them and left them to rot on the plains? Who considered the mountain that became Mt. Rushmore a holy site before the rock face was cut away to reveal presidential power?

In short, this passport creates a stylized version of Sarah Palin’s “real America,” a country that never existed. Yet, this white-washed, masculine, rural country clearly appealed to the lawmakers who approved it and to the State Department that created it. In fact, when the passport was released in 2007, the deputy assistant secretary of state for passport services stated, “We thought it really, truly reflects the breadth of America as well as the history. We tried to be inclusive of all Americans.”

What’s the link to reproductive justice? Well, if our lawmakers think the country they’re governing is the one in this passport, then they haven’t considered whether a woman of color has the support to parent her children with dignity, or whether a Native American woman can access emergency contraception through Indian Health Services, or whether an Asian woman working at a nail salon is adequately protected from the toxins in nail polish. Until we understand that an illustration of bison feeding in front of a mountain does not mean the same thing to every American, until we recognize that depicting Americans as only white men ignores vast and valuable American experiences, reproductive justice will remain just out of reach. Until our government and our fellow citizens recognize that we’re a nation of interesting people, delicious food, different languages, widely varying experiences and opinions, reproductive justice will remain an ideal, not a reality.

I have no choice but to carry this passport. When I do, though, I will do my best to honor the people it doesn’t.

Shelley Halstead, LSRJ Summer Legal Intern

The story in the NY Times about Michelle Obama’s ancestry caused quite a stir the first time, but this time it was even more tantalizing—probably because it had pictures.  I’m sure it’s hard not to stare into the photos of Michelle’s white ancestors and try to see her in them (or are we trying to see her in “us”?). But what is so disconcerting to me is that this is nothing new – it’s the story of a black slave girl, a white male slave owner, and bi-racial off-spring.  It’s the story of power and exploitation that happened for many years in this country through slavery and the subjugation of black Americans, half-black Americans, one-quarter black Americans and “one in the wood-pile” Americans. You get my drift.

Black Americans already know that some of our ancestors were white. But do white Americans know? Oh, I understand, it’s the President’s wife—the ascendancy.  How far we’ve come.  Really? Is that what all the fuss is about? I’m skeptical that the fascination with her family tree is only about her being the first lady. I know that the first family is our royalty here in the States but it seems that this is about something else. It’s seems to be about her whiteness rather than her blackness. Perhaps it just makes her, in some people’s eyes, a little less black and a little more acceptable (read: white).  In the Times article, one of the Michelle’s kin mentioned that she did not want to think of their ancestor’s as rapists or slave-owners. Luckily for her she does not have to unless confronted through DNA. Black girls did not want to be slaves nor did they want to be raped. We don’t want to think about it either.  But unfortunately, this is our nation’s history. It’s not like I’m saying, “speak truth to power,” I’m simply saying, “it’s the truth” and we know it.

I’m all for people looking into their pasts. Or even having others dig around in their stead. It’s just that when the story that is told does not square with the lived reality, I find the “importance” of a story like this a little tenuous. If we want to marvel at the first lady’s heritage let it be as an accomplished black woman from a black family—not about her beginning, that story’s as old as the States—but then again, sometimes it seems that black folks are the only ones who know it.

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.

Shelley Halstead, LSRJ Summer Legal Intern

We interns here at the LSRJ national office spent the greater part of our first week drafting a memo on shackling. If you haven’t heard, prisons around the country continue to shackle pregnant and birthing women immediately before, after, and while they are giving birth. I knew this was happening but honestly, hadn’t made it a priority to acquaint myself with the ins-and-outs of it. With the onslaught of reproductive rights and services being attacked it is sometimes easier to fight on a front that is more familiar and more established. Basically, I wasn’t comfortable.

But one of the responses I received when sharing my research affirmed for me why we have to continue talking about the things that make us and others uncomfortable.  I was asked to not keep saying the word “shackling,” not because it was inaccurate (I suppose I could have used “restraints”), but similarly for me, it conjured up images of a not too distant past when black women were once chattel. And why shouldn’t it? The disproportionate numbers of black and brown women in prison continues to tell our story as a disenfranchised minority in this country. Fifty percent of incarcerated women are African-American yet make up thirteen percent of the female population in the US while two-thirds of incarcerated women are women of color.  It’s something you might suspect, but when confronted with the numbers, it’s rather disturbing.

If reproductive justice is truly what we’re after, not just choice, then this issue is one central to our path toward it. Until we address the social reality of inequality, (specifically, the inequality of opportunities that we have to control our reproductive destinies) then our realization of autonomy and self-determination will cease to materialize.

The great news is that more and more legislatures are restricting this practice. A lot of people across the political and social spectrum agree; shackling is barbaric. It is something we can stop. I’m not saying that our other challenges are something we can’t change, but clearly racism, sexism, and classism are systemic, otherwise we would have changed them by now. And while the reason there is such disproportionality in prison is systemic, the actual practice of shackling is symptomatic—an outward manifestation of those systems. The long-game is reproductive justice, and eliminating the practice of shackling is but one of the ways we will achieve it.

While you may not watch television (or own one for that matter as law students), you may be familiar with AMC’s Mad Men, a series around a small Madison Avenue advertising firm (hence the name, Mad Men) set in the early 1960s. The show functions to reenact the political discourse of the time period as played out in public and domestic spaces. Considering the recent legislative proposals to limit reproductive freedoms, Amanda Marcotte with The American Prospect connects the purchase of birth control, misogyny, and sexism in a pre-Roe era to the current political landscape  of even harsher restrictions on access to reproductive care.

For your leisure, political graphic in support of Planned Parenthood.

As the Affordable Care Act is deliberated in the Supreme Court, NAPAWF Reproductive Justice Fellow, Shivana Jorawar asks us a critical question; Who is at stake?

Mother Jones posts a chart displaying how much more women pay for health insurance throughout the country.

ABB’s Pamela Merritt ponders how perhaps it was Trayvon Martin who stood his ground and shares her thoughts on the “Stand Your Ground” law as it only applies to successfully killing someone.

ACRJ blogger Nina Jacinto remember the life of feminist poet, Adrienne Rich.