Roe v. Wade: A Reminder That We Deserve More

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

I first learned about Roe v. Wade as an eager, nerdy, middle school student. No, it was definitely not covered in my history classes and it was barely discussed in my constitutional law class. I learned about it because my Latina mother introduced me to the world of feminism and feminist heroes at a young age. When I first learned about Roe, I was amazed and thought it was the best thing that ever happened to the women’s movement.  As each anniversary passes, I’m less amazed and more circumspect about the meaning of Roe. I know now that we have a long way to go before we achieve full equality and justice for all women, including transgender men. Roe is not the pinnacle of our movement, but it is a starting point.

Since Roe, it’s relevance to women’s lives has become somewhat diminished due to relentless political assaults.  In 1976, Congress passed the Hyde Amendment, which is an almost total ban on abortion coverage for women who qualify and are enrolled in Medicaid, making abortion inaccessible in practice for low income women of color.  It has continuously been reauthorized in each federal budget.  Lack of insurance coverage for abortion care isn’t the only barrier for many women.  Several states have passed laws to “regulate” abortion care, again effectively making it inaccessible – take for instance TRAP regulations and laws pertaining to misoprostol.  Then, we have issues of accessing care – many women live in areas of the country where there are no abortion providers and they do not have the means to travel to the closest abortion provider,sometimes hours away. And’s let not forget about Casey and the “undue burden” standard.

Finally, transgender men who may need abortion care may not receive the care they need because of the lack of culturally competent providers in general for this community, let alone providers who are trained and licensed in providing abortion care.  Not to mention the fact that transgender and gender non-conforming persons also face high rates of discrimination and violence, even in healthcare settings.   

So yes, let’s celebrate Roe v. Wade, but the next day we need to get back to work.   

I’m in the 78%. Taking Back the Narrative: Asian American and Pacific Islanders DO Support Abortion.

Christine Poquiz, Resident Blogger (’12, University of California, Davis School of Law)

Working as a reproductive justice fellow at the National Asian Pacific American Women’s Forum (NAPAWF), we’re often combating myths (model minority anyone?) and misconceptions around the Asian American and Pacific Islander community.  AAPI women, activists, and organizers are speaking up, fighting back, and recreating the narrative around our community. A few months ago the hashtag #notyourasiansidekick took off on twitter to talk about the struggles that Asian American women face and AAPI feminism. The response to this hashtag was overwhelming and showed how many young AAPI women wanted a forum to talk about these issues. [click here to see the follow-up Google Hangout with NAPAWF’s executive director, Miriam Yeung]

On this 41st anniversary of the landmark decision Roe v. Wade, there are misconceptions that AAPI women aren’t affected by attacks on abortion rights. However, bans against public insurance coverage of abortion, like the Hyde Amendment, cause great harm for subpopulations of the AAPI community who depend on public insurance like Medicaid. Furthermore there is evidence that AAPI women use birth control at lower rates than the general public, have high rates of unintended pregnancies and utilize abortion services at higher rates. On top of all that, some legislators are using stereotypes about Asian American women to pass sex selective abortion bans that encourage racial stereotyping of AAPI women in the doctor’s office and could possibly even cause doctors to deny care to women in our community. AAPI women are significantly affected by attacks on abortion access.

The AAPI community needs to shape the conversation about us, or other people will do it instead. One traditional perception about the AAPI community is that we’re conservative in our values. However, from the National Asian American Survey (NAAS), which conducted opinion polling on over 6,000 AAPIs, showed that the AAPI community is progressive in our values. During this celebration of Roe, it’s crucial to highlight that 78% of AAPIs support some form of legal abortion. Furthermore, 69% of AAPIs believe that the government should stay out women’s personal decision-making.

Here at NAPAWF, we’re big proponents for data disaggregation, and the 78% is not reflective of each AAPI subpopulation. For example, the traditionally Catholic Filipino community is less supportive of legal abortion than the rest of the AAPI community. But even among the Filipino community, over 50% support some form of legal abortion. Moreover, there are higher rates of “I don’t know” within the Vietnamese and Hmong community, which shows advocates like us that there needs to be more culturally competent education around this issue for these communities.

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Most importantly, these top line numbers break the notion that AAPIs don’t support abortion. This year, NAPAWF is uplifting these numbers to show that AAPIs are supportive of abortion and a woman’s personal decision making. Our members, community leaders, and elected officials are taking part in a photo campaign saying that they’re part of the 78% and that they support Roe.

We’re working on changing the narrative. Send in your photo saying you’re part of the 78% today.

Brown Beauty

Mangala Kanayson, Resident Blogger (’15, Emory University School of Law)

By now you’ve probably seen the outcry in social media – first aghast and angry that a non-white woman somehow managed to win the Miss America beauty pageant and then indignant that our very own compatriots could be ignorant and hateful enough to express their displeasure at this by crying ‘terrorist’ at her.

Social media was replete with defenders of Nina Davuluri. Thanks to these fearless internet warriors we now know that Nina Davuluri – despite her skin color – is American. We’ve also learned that there exist clear and highly relevant distinctions between the terms ‘Indian,’ ‘Arab,’ and ‘terrorist.’ Thank you, Internet.

In this flood of criticism we’ve managed to avoid reflecting on what it means for a brown American of South Asian descent to have won Miss America. I mention her skin color because it matters to a generation of American-born Desis who encountered a deeply entrenched bias toward light skin perpetuated by the Indian media and often in our own families by well-meaning relatives who kept us from the sun (whom among us managed to escape an encounter with Fair & Lovely?).

Faced with this and the overwhelming whiteness of American beauty ideals, it is a small relief that Miss America 2014 has brown skin. Sure the Miss America pageant will continue to teach girls that how they look ultimately defines their success and self-worth, but Nina Davuluri’s sentiment was not completely lost when she said “I am thankful there are children watching at home who can finally relate to a new Miss America.”

Coerced Sterilization – Asserting Power over Female Bodies

Mangala Kanayson, LSRJ Summer Intern (’15, Emory University School of Law)

Forced sterilization has a sordid history in California. Before a state ban was enacted in 1979, single characteristics (such as poverty, mental illness, or being in prison) meant people were systematically deemed unfit to procreate and punished for existing by having their choice to exercise autonomy over their health and bodies removed.

The Center for Investigative Reporting (CIR) recently released a report on the illegal sterilization of incarcerated women that lifted the curtain and exposed to us the dark reality; that despite moralizing about equality, people still do not perceive incarcerated women as deserving to mother children and that even those charged with protecting the health and well-being of women can forcibly assert authority over female bodies and feel that they have done nothing wrong.

CIR’s recent report on the illegal sterilization of female prisoners is too heavy of a weight to dismiss as the poor judgment of a few or as the unfortunate quest of a misguided doctor.

Pressuring a woman into being sterilized during childbirth is more than an assertion of power over her body. It is a value judgment that strips away her right to be and her right to choose when and how to parent her children. In the context of our sexist, classist, racist society, it is also an action steeped in a history of oppression and injustice.

Kahlil Gibran in his 1923 poem The Prophet, wrote that “the wrong-doer cannot do wrong without the hidden will of you all.”  Perhaps he was right. Could doctors have so violated the rights, dignity, and personhood of these women outside the context of a sexist culture that regulates/legislates women’s bodies and reproductive autonomy as a matter of course? Would officials have allowed and participated in the coercion of women so obviously under duress outside of a culture that objectifies women and relegates them to caricatures instead of people?

The online rhetoric surrounding CIR’s controversial report is overwhelmingly in favor of forced sterilization. This suggests that vulnerable populations, particularly female prisoners, are not yet deemed “fit to live among us.” This report must convince us that women’s rights are still overwhelmingly unattained, and must force us to vehemently and unfailingly rebuke the idea that anyone can be viewed or treated as less than human.

Stand Up California!

Erin Panichkul, LSRJ Summer Intern (’15, Thomas Jefferson School of Law)

Isn’t California known for its progressive ideologies? Don’t we pride ourselves by leading other states in protecting the sanctity of basic rights? Last I checked California wasn’t known for discriminating against lower class families, mothers, and newborns. So why does the Maximum Family Grant (MFG) aka the “family cap” still exist? California is sending a message that poor people shouldn’t have any more children, a true reproductive inequality.

MFG is a program limitation that will NOT cover any additional funding for additional children born to a family that has been receiving CALWORKS for the past 10 months. Essentially, families who need the most help and are currently receiving aid, have the most limited options available when it comes to family planning and reproductive choices. The additional funding is minimal but to some families, it makes a world of a difference. MFG hurts real California families.

 “People think the worst of you when you are poor. They think you are less of a mom and that you are a bad mom if you choose to bring children into the world when you are poor. Even more insulting is the idea that poor women like me are controlled by money more than we are liberated by our emotions, experience, and sense of knowing what is right for our families.” – Melissa Ortiz

California’s government has demonized struggling mothers like Melissa. Are we systematically forcing struggling women to choose abortion when they don’t want to or  leave a newborn without proper health care and nutrition due to lack of access to aid? What’s next, forced sterilization of the lower class? Reproductive decision-making is not a privilege; it’s an individual right that California should protect! Why? Because ALL families matter!

MFG is fundamentally wrong and a true injustice to all California families. It’s a form of reproductive oppression and coercion based solely on income. Bottom line: The amount of money a woman has or doesn’t have should not be the main factor in making decisions about the outcome of her pregnancy, including abortion, and giving birth.

California, we can stand up for the rights of all families! Show your love and support for Melissa and all California mothers by supporting AB 271 (Mitchell), a bill to repeal MFG in California.

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.


We have to trust you with a gun, trust us with our bodies and families

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?

The Whole Picture: The 50′s weren’t “romantic” for everyone

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.