The Women’s Health Protection Act: A Missed Opportunity

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

Last year, Sen. Blumenthal (D-Conn.) introduced a bill titled the Women’s Health Protection Act of 2013 (WHPA).  The bill’s intended purpose is “to protect a women’s right to determine whether and when to bear a child or to end a pregnancy by limiting restrictions on the provision of abortion.” The bill begins with legislative findings that acknowledge how access to safe, legal abortion services in the US has recently been hindered by obstructions such as blockades and violence in front of facilities, restrictions on insurance coverage, restrictions on minors’ ability to obtain an abortion, and injurious laws singling out abortion providers.  These are serious obstacles to reproductive justice that must be addressed.

Thus, it is apt that the bill states, “federal legislation putting a stop to harmful restrictions throughout the United States is necessary to ensure that women in all States have access to safe abortion services, an essential constitutional right repeatedly affirmed by the United States Supreme Court.” In my opinion, the bill is ultimately too weak to effectively carry this goal out.  It explicitly declares that the WHPA “does not apply to clinic violence, restrictions on insurance coverage of abortion, or requirements for parental consent or notification before any minor may obtain an abortion.”

So what does the bill do?

Basically, it prohibits regulating the manner in which abortion providers carry out their services, such as regulating which specific tests be performed, whether doctors may delegate certain tasks, whether a doctor may prescribe certain drugs, or whether a doctor may provide an abortion via telemedicine. The bill also feebly encourages Congress to “address” the larger issues like clinic violence, insurance restrictions, or parental notice laws in separate legislation.

All of this makes for a good start, but it’s a shame that Sen. Blumenthal ultimately passes the buck on some of the largest issues that hinder reproductive freedom today rather than championing them in this bill.

Dear Oscars – “strong female lead” must encompass more than “strong female white lead”

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

Disclaimer: I have seen only one of any of the Oscar nominated films this year. I had the misfortune of seeing “August: Osage County,” and as my friend aptly stated in her refusal to see it: “I will not see any more movies where white people sit around a dinner table and yell at each other.”

As another blogger here pointed out, the Academy has a gender problem. Yet, as a white woman, I have the privilege of seeing people like me at least somewhat represented in feature films. The story is not the same for people of color. I didn’t see “12 Years a Slave,” and I’m glad that some of the Academy’s whitewashing has receded. But the Academy fails to recognize films about black people, created by black people. I really can’t forgive the lack of acknowledgement that “Fruitvale Station” received at the Oscars. “Fruitvale” is a film directed by Ryan Coogler, a black filmmaker, and starring a black character, a young black man. The Academy seems to have problems appreciating films about people of color who do not fit into tropes with which white people are comfortable. Don’t get me wrong, “12 Years a Slave” had a story that needed telling: slavery from the point of view of a slave, not a white savior. But the Academy already consistently recognizes films about slavery – possibly because it’s comforting to place slavery as a past racial problem. Similarly, “The Help” received a plethora of accolades at last year’s Oscars; it was easy to watch that film and congratulate ourselves on the seeming “end” of racism. “Fruitvale Station,” on the other hand, doled out no congratulations to the audience. The power in the movie lay in its refusal to be just a movie about young black men, and more about this young black man. I can’t say it any better than A.O. Scott: “The radicalism of ‘Fruitvale Station’ lies… in its refusal to turn a man into a symbol. Nearly every black man… tends to be flattened out by popular culture… rendered as an innocent victim, a noble warrior or a menace to society.”

The Academy’s discomfort with dynamic roles for people of color extends to a larger problem in Hollywood. The film industry routinely dismisses casting young women of color in leading roles as well. It’s undeniable that young white girls have benefitted from seeing more and more female leads, especially in adaptations of their favorite novels. “The Hunger Games” trilogy shows that young, badass women sell tickets too. But the previews for “The Hunger Games: Catching Fire” promoted two movies, both with young, white female leads (“Divergent” and “Vampire Academy” – granted, “Vampire Academy” looks pretty stupid, and idealizes girls in scantily clad clothing). At least one of these films could have had a person of color as its lead – especially because books are usually silent as to their lead’s skin color, so that readers can self-identify with the protagonist. I’ve been fortunate enough to see myself reflected in films, with a fair share of Katnisses and Meryls. Now it’s time to realize that “strong female lead” must encompass more than “strong female white lead” in order to capture the range of humanity and diversity in American society.

Stock Up: Ridding Preposterous Images of Women from Stock Photography

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

It was a pleasant surprise to wake up the other morning and see a positive move towards gender parity. Leanin.org announced that it would be partnering with Getty Images to improve the representation of women in stock photography. That’s right, heels will soon be back in style for walking instead of stepping on men, or hanging off of disembodied legs. I’m not too crazy about Sheryl Sandberg’s Lean In thesis: that women must learn to adopt characteristics like “assertiveness”  to succeed in this maniverse, rather than dismantling it. But Sandberg aptly described the need for this project as, “you can’t be what you can’t see.”

And what we’re seeing these days is pretty abismal. Advertising is gravitating towards more objectification of female bodies than ever before. It’s not difficult to imagine the toll this imagery takes on young women and girls: depression, eating disorders, and lower self-esteem, to name a few ramifications. But we hear less about the implications these images have for young men. One peer-reviewed study found that men were more tolerant of rape myths and sexual harassment after they viewed images of sexually objectified women. The effects became more pronounced as the exposure to objectifying imagery increased. And if the stock images out there aren’t offensive, they’re just downright ridiculous. This project won’t rid the world of women posing as beer bottles, but it will more accurately depict the “working woman;” she’s leaving those man-stomping heels at home this time.

As a LSRJ alum, I care about women winning

Kate Baxter-Kauf, Guest Blogger, (’11, University of Minnesota Law School)

Like most alumni members of the LSRJ, I was active during law school in my chapter, serving as the co-treasurer for two law school years and going to meetings all three, and helping to organize fund raisers, educational events, and visiting speakers (though perhaps not as active as two of our co-presidents during my law school, both of whom LSRJ has profiled!). Also like most alumni members of the LSRJ, I’m committed to fostering legal expertise and support for the realization of reproductive justice. During law school, my involvement with LSRJ made the method through which I supported these goals clear —my LSRJ chapter had a full and vibrant schedule of ways to learn and get involved.

But since graduating from law school, I’ve been less sure how to support reproductive justice in more tangible ways than being informed and following smart activists on Twitter. I work in private practice; my job doesn’t involve non-profit or advocacy work on a day to day basis. There does not seem to be much of a need for pro bono direct legal services for those seeking abortions in my area—I looked, for example, as to whether minors requiring a judicial bypass proceeding needed counsel in Minnesota, where I live, but my research and discussion with providers indicated that guardians at litem and not lawyers were the ordinary volunteers. Every pro-choice organization needs donations and holds events, and I’ve found a few I especially like, especially those that directly fund abortions for people who can’t afford them.

Over the past year I have found a different opportunity to participate in the movement through an organization called womenwinning. The organization recruits, trains, and helps pro-choice women candidates get elected and the events it puts on directly support this mission—I went to a house party that discussed essential traits of successful global leaders in the context of women in the workplace with Dr. Annmarie Neal that was fantastic, and last year’s annual luncheon with former Senator Olympia Snowe was both inspiring and informative about the ongoing need for pro-choice women officials across the ideological spectrum. Next week, I’ll be attending my second annual Wine, Chocolate & Choice event, which is specifically designed to aid young pro-choice women like myself in fostering the next generation of reproductive rights advocates.

If you’re in Minneapolis next week and a supporter of LSRJ, you should join me. If you’re not, I highly encourage you—in addition to supporting LSRJ, supporting and funding direct reproductive rights services, and other events—to seek out these types of organizations. Finding a way to elect pro-choice women candidates to all levels of public office is a concrete step in the fight for reproductive rights and justice.

Note from the LSRJ national office – as a 501(c)(3) organization, we do not support or oppose any candidate running for public office. Any LSRJ alum or member affiliating with WomenWinning is doing so as a private individual.

The Rape Apologist

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

As a TA for a criminal law class this past semester, I witnessed some pretty scary comments about sexual assault from law students.  Those comments were the inspiration behind this post.

A “rape apologist” is someone who sympathizes with the rapist (The onion has summarized this affliction oh-so-well.)  Here’s how to identify and treat the symptoms of such a person:

  1. The raised eyebrow at the mention of rape. Treatment: pretend you were talking about rate…s of inflation in this country. Get out while you still can!
  2. Outlining his perfect rape apology scenario: “So things are getting hot and heavy between a girl and a guy. She decides she’s not into it, but she just lies there, and doesn’t say anything. And the guy still thinks it’s great, so he keeps going. How can you blame him when she doesn’t say anything?” Treatment: “Does that sound like good sex to any reasonable human being? You make sure your partner is properly lying like a frozen, dead fish, you don’t speak, and you just continue? LADIES: GET IN LINE, THIS GUY JUST CONTINUES.”
  3. The proper allocation of blame: “The ‘victim’ [read: air quotes] needs to ask what she was doing to cause her rape.” Treatment: “Sir, I believe you are speaking to personal responsibility. You know what’s a good barometer for personal responsibility? Simply asking your partner, ‘is this ok?’
  4. “Science” that conveniently apologizes for rape: “Besides, science says that men are biologically predisposed to commit rape. So, come on: science…” Treatment: “I believe you are referring to Thornhill and Palmer’s A Natural History of Rape, which can be summarized as: ‘male scorpionflies seem to rape, therefore male humans obviously need to rape.’ You should read Besteman and Gusterson’s book, Why America’s Top Pundits Are Wrong. They are leading anthropologists who de-bunk biological determinism. But I understand if you’re too busy reading… Reddit…?”

If you or someone you know suffers from rape apology, there is still hope. Call that person out on it today!

A corporation is not a person

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

In a victory for reproductive justice, the Affordable Care Act (ACA) mandates coverage of 20 preventive contraceptives in private health care plans without additional cost-sharing like co-pays.[1]  Now, private interests are seeking to gut this provision in the Supreme Court by claiming corporations should not have to adhere to the mandate if their owners subscribe to a religious belief that some of these preventive contraceptives are in fact abortificients.

In November, the Supreme Court granted cert in Sebelius v. Hobby Lobby Stores, Inc.[2]  In this case, Hobby Lobby’s owners, the Green family, claim that mandating the corporation cover certain contraceptives violates Hobby Lobby’s freedom of religious exercise under the Religious Freedom Restoration Act (RFRA).

As the Tenth Circuit explained in its majority opinion, “a plaintiff makes a prima facie case under RFRA by showing that the government substantially burdens a sincere religious exercise.  The burden then shifts to the government to show that the compelling interest test is satisfied through application of the challenged law to the person — the particular claimant whose sincere exercise of religion is being substantially burdened.”[3]

The problem here is that a corporation is not a person.  It can not be spiritual.  It has no mind; it can not form a belief system, let alone adhere to one for purposes of the RFRA.

Hobby Lobby can not pray.  It can not sit next to my peers in church, and stand with the rest of the congregation to sing hymns.  It can not meditate.  It can not believe in God.  The Greens, on the other hand, are capable of – and free to do – all of the above.

Allowing for-profit corporations to exempt themselves from the mandate under the RFRA is wrong.  These employees should be allowed to freely exercise religion in line with their own values and belief systems; their employer shouldn’t exercise it for them.



[1] http://abcnews.go.com/blogs/politics/2013/11/supreme-court-may-review-obamacare-contraception-mandate/

[2] http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/

[3] http://www2.bloomberglaw.com/public/desktop/document/Hobby_Lobby_Stores_Inc_v_Sebelius_723_F3d_1114_10th_Cir_2013_Cour

Why is the Employment Non-Discrimination Act Important? Can’t LGBT People Just Hide Their Identities?

Lauren Paulk, LSRJ RJ Fellow (’13, City University of New York School of Law)

My colleague received the title question after a webinar on the intersection of LGBT Rights and Reproductive Justice. I both live and work at this intersection, and so I was particularly struck by this webinar attendee’s question – why is LGBT employment discrimination significant when it is “easy” to hide this identity?  I’ll be honest, my first reaction was a bit of frustration  because it seemed like yet another person trying to push us all back into the closet. But I have to believe this was a genuine question and perhaps one other people were wondering about, including my own friends and family.

Being out at work – and working at a place where that is not just accepted, but celebrated – means everything to me. Hiding who you are at work can be a difficult and painful thing to do, and being “found out” in a state without an Employment Non-Discrimination Act (ENDA) can cost you your job or subject you to unwanted harassment, no matter what steps you have taken to remain closeted at work. Additionally, although some LGBT people are able to hide their sexual orientation or gender identity from their coworkers, some either do not “pass”[1] as straight or cisgender, or may be purposefully or accidentally “outed” by a coworker or friend. Even if your workplace doesn’t fire you, keeping your sexual orientation or gender identity a secret has serious implications for LGBT employees. Hiding sexual orientation can result in workers not getting access to workplace benefits for same-sex partners and families. Likewise, hiding gender identity can hinder access to appropriate healthcare benefits for transgender workers.

Discrimination in the workplace also leads to wage gaps and overall greater economic insecurity for LGBT families, especially for LGBT families living in Southern states, where protection against employment discrimination is less common. This economic insecurity can be compounded for LGBT parents who live at the intersection of other marginalized identities. If reproductive justice includes the right to parent our children free from discrimination, we must consider how job insecurity and instability cause reproductive INjustice for LGBT people.

There are also day-to-day consequences of hiding who you are. For example, it is not at all unusual to discuss dating life and romantic relationships at the proverbial water cooler in an office environment. Additionally, at office events people are encouraged to bring a date, and many people want or choose to bring their significant others. This may lead LGBT people to avoid socializing at work altogether in order to avoid uncomfortable personal questions or conversations. These two things are only small examples of how an LGBT person may have to suppress their own identity and personal life at the expense of not being able to be honest or speak openly with their colleagues, and at the expense of not being able to share their work environment and colleagues – arguably very significant parts of a person’s life, given that many people spend eight hours a day at the office – with a partner or significant other.

On the other hand, an article by the Center of American Progress discusses the increased productivity, workplace satisfaction, and job commitment from LGBT people who are out at work. This is corroborated by the recent account of a PepsiCo. employee discussing her personal story of what it meant to her to be able to come out at work.

Economic justice is inextricable from reproductive justice, as these cases help illustrate. The thing to focus on as we consider and debate ENDA with lawmakers, family, and friends, is whether or not people should be fired just for being who they are.

 



[1] “Passing” is a term that means someone is able to mask an identity they hold in order to blend in with people who hold a different identity.

Enough with smooshing already! (Part 2)

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

Earlier this week I wrote about the merits of the film Don Jon; it was entertaining and delivered a meaningful but not preachy social commentary. While Don Jon brings to light the struggle viewers of pornography face in determining its role in their journey to sexual individuality (or lack thereof), it’s important that we not forget about the real people upon which the pornography industry is based and the public health challenges they face.  The same month that Don Jon was released three performers in the pornography industry tested positive for HIV.  Despite federal workplace laws that should mean pornography actors wear condoms on set, condoms often are not used.  Actors have even expressed fear they would be out of work if they ask to use condoms on set.  The pornography industry has reacted to the most recent HIV-infections by stating they will conduct more frequent STD testing.  However, testing costs fall on the actors.

Regardless of your view on pornography or its role in your sexuality, it’s a lucrative industry that will continue to thrive.  The pornography industry must be pushed to implement workplace practices that protect their employees’ health, including requiring that actors wear condoms.   Learn more about the public health reasoning for advancing policies that safeguard the sexual health of these actors here.

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.

 

Cat Callin’ It Like I See It

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

Like any good law student, I broke down street harassment into its parts.  The where, and the when are devoid of pattern. You could be hunched over, wearing sweat pants and a backpack, or in a tasteful suit running late to a meeting.  (Both happened to me.)

The cat caller does pay attention to your companions, though.  Are you walking alone?  Obviously, you are doing this without the permission of your father or husband.  Are you walking with other women?  You must be a group of contrary daughters and/or wives.

If, however you are walking with a man, the cat caller is silent.  Another-man-with-you gets to the root of cat calling: possession.  The cat caller recognizes that the woman is that man’s property – his capitalist instinct kicks in, and he refrains from messing with another man’s stuff.

A possession theory especially helps when you hear the mansplanation, “what’s wrong with commenting on a woman’s beauty?”  If “beauty” were the extent of it (assume that the cat calls are limited to, “hey gorgeous”-es), then wouldn’t the cat caller remark on a woman’s beauty even if she were with a man?  This never happens.

I was delighted to see that Tatyana Fazlalizadeh created an empowering art project tackling this issue:  a series of portraits of women, with statements to discourage street harassment.  After reading the article, one male commenter remained resolute in his street harassing, and noted quixotically, “[i]magine walking through a garden and not being able to enjoy the flowers with your eyes.”  His comment reinforces possession: women are mere objects for a man’s viewing pleasure.  I hope Fazlalizadeh’s art will help him wake up and smell the roses.