Where Pro-Choice Lawyers Can Make a Big Difference: Clinic Violence and Intimidation

Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)

Anti-choice activists are like a slow-motion temper tantrum. They stand outside abortion clinics with graphic signs. If they don’t get their way, they may try to rent the space out from under the clinic and “counsel” women who unwittingly come to the space seeking an abortion without disclosing that they aren’t, in fact, the abortion clinic the women had expected to find there. Sometimes, they intimidate pro-choice activists by showing up at their homes holding graphic and threatening signs. Sometimes they intimidate clinic workers and women seeking reproductive healthcare by taking down their license plate numbers, a practice that is sometimes followed with stalking that can only be described as “creepy as f***.” Eric Scheidler of the Pro-Life Action League sent plastic handcuffs to abortion providers on the anniversary of Roe v. Wade; the message with one read, “Could you be next? If you want to get out of the abortion business, give me a call.” The suggestion, of course, was “quit your job or you’ll end up in these handcuffs,” which was particularly absurd, considering it was sent on the anniversary of the SCOTUS decision that legalized abortion. The Feminist Majority Foundation recently released their 2014 National Clinic Violence Survey, which shows that “targeted intimidation and threats” are way up (see Chart 4). Some anti-choice activists do whatever they can think of to keep people from exercising their constitutional right to an abortion, even when that means placing people in fear for their lives.

Sometimes, anti-choice activists are so “pro-life” that they kill people. A meticulous NARAL report on clinic violence notes that “since 1993, eight clinic workers – including four doctors, two clinic employees, a clinic escort, and a security guard – have been murdered in the United States.” And since 1991, there have been 17 attempted murders at clinics.

As lawyers and future lawyers, we are uniquely equipped to help keep abortion providers and their patients safe. Think about how you can flex your legal muscle to help your local clinic, be it pro-bono work obtaining protective orders against anti-choice activists who’ve crossed the line into harassment or intimidation; training clinic staff on how to document intimidation; advocating for legislation to protect clinic workers from targeted intimidation and threats; or anything else your unique skillset enables you to do to help. We owe it to the clinic staff and their patients to use our privilege in these high-impact ways, and hopefully we will keep people safe and clinics open by doing so.

Federal District Court holds Anti-Prostitution Loyalty Oath Unconstitutional as Applied to Foreign-Based Organizations

Rhiannon DiClemente, Resident Blogger (’16, Temple University Beasley School of Law)

I’ve written before on the ways in which the U.S. government exports its own repressive ideologies regarding sexuality and reproduction through foreign aid conditions. The Anti-Prostitution Loyalty Oath (APLO) is yet another example of this tired tradition. While academics and advocates continue to debate the social and moral legitimacy of commercial sex work, the U.S. government has taken a direct stance in opposition to prostitution and related activities. Through the APLO, it has required non-governmental organizations (NGOs) to adopt this position in order to receive funding.

The APLO amended the President’s Emergency Plan for Aids Relief (PEPFAR). Initiated in 2003, PEPFAR committed forty-eight billion dollars over a five year period to combat the spread of HIV/AIDS. The APLO inhibits freedom of speech by requiring that recipients of PEPFAR funds pledge their opposition to prostitution and sex trafficking. It also prohibits activities that “promote or support the legalization or practice of prostitution.” The provision governs not only the recipient’s use of U.S. government funds, but also private funds as well.

Not surprisingly, many organizations have refused to comply with the APLO, despite the need for HIV/AIDS prevention and treatment services (UNAIDS estimates that less than one percent of global resources are dedicated to HIV/AIDS programs for people involved in sex work). In 2005, the Brazilian government declined forty million dollars in U.S. funding by refusing to accept the APLO. Later, during the 2010 International AIDS Conference, activists interrupted the U.S. Global AIDS ambassador’s speech to chant “PEPFAR kills sex workers.” Many governments and community-based organizations, such as SANGRAM, see people involved in sex work “not as carriers of HIV but rather as individuals who can be empowered to become agent[s] of change” in the fight against HIV/AIDS.

After a lengthy legal battle, in 2013 the Supreme Court declared the APLO to be a violation of the right to free speech when applied to U.S.-based organizations. However, the U.S. government has attempted to narrow the scope of the decision by insisting that the ruling does not prohibit the imposition of the APLO on foreign affiliates. This is problematic because U.S.-based implementers often rely on foreign organizations to carry out their health projects on the ground. Thus, even after the decision, the APLO has continued to stifle debate and put the lives of people in sex work at risk.

However, on January 30, 2015, a federal district court decision denied this narrow interpretation. Judge Victor Marrero confirmed that the First Amendment prohibits the U.S. government from imposing the APLO on U.S. organizations and their affiliates, regardless of where the affiliates are located. This is a breakthrough ruling in support of a free and open civil society. Rather than silencing the voices of individuals on the ground—U.S. policy should work to amplify such voices. Purnima Mane, President and CEO of Pathfinder International affirms that “it is critical to retain the ability of individual organizations to provide a range of life-saving health services to whomever needs them without sacrificing the right to free speech.”

Access to Contraception an Issue for Female Servicemembers

Elise Foreman, Resident Blogger (’16, Emory University School of Law)

In the wake of the Hobby Lobby decision last term, it seems like the Internet is blowing up with stories about access to contraception and women’s health across the United States. However, one employer in particular seems to be neglecting the needs of its staff, with little backlash from pundits: the American military. (For the full story, see the Center for American Progress’ story, Access to Contraception for Female Servicemembers).

Fortunately, a bill was introduced yesterday in the House of Representatives that, if passed, would increase coverage for American service women. (Check out RH Reality Check here for coverage on the bill). Specifically, the bill would ensure that options available through the Affordable Care Act would be available through the military’s healthcare plan, TRICARE. As it stands now, certain methods are left off the list of covered birth control methods – even though service women are at higher risk for unplanned pregnancies and sexually transmitted diseases. The bill seems to face a difficult battle, despite slow progress for all federal employees.

Impeding access to contraception for American service women denies not only their reproductive rights but similarly places additional barriers on their ability to perform their duties effectively. As members of the armed forces, these women should be at the forefront of the contraception conversation and provided comprehensive care. Not only should this care be provided in times of crisis, but in times of relative peace as well. Denying these important methods threatens to hold these service members back, while allowing their male counterparts to surge ahead. And in terms of the military, this deficient care can be debilitating.

As reproductive rights advocates look forward to the legislative battles ahead, let’s ensure the women serving in the military are supported in this crucial aspect.

The Economics of Affordable Care

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

November 15 kicked off open enrollment season for health care, so I’ve had insurance on the brain.  I already took advantage of my “free” preventive/screening doctor’s appointment and obtained “free” FDA-approved contraception months after they became available to me under the Affordable Care Act, fearing the courts would whittle these mandates down before you can say reproductive freedom.

I’ve become especially interested the economics of the matter.  There’s no question that the Affordable Care Act has caused a lot of spending at every level.  The public at large funded legislators to draft and debate the legislation.  For-profits and not-for-profits have funded litigation either fighting or defending the law.  Folks who didn’t have insurance prior to the law must now buy it or pay a penalty.

While I like to think that the insurance companies are taking some responsibility for the reproductive health of the insured because they must now cover things like copays for well-women visits and contraception, my economic sense tells me that’s too good to be true.  It might seem like insurance companies would happily pay for preventive reproductive health services because it would save insurance companies money in the long run.  Under this reasoning, the cost of being on birth control long term and getting a pap every 3 years would be less than paying for unintended pregnancies or late-stage detected cervical cancer.  Unfortunately a recent New York Times article suggests that this isn’t the case.

So I suspect my insurance company figured out how to spread out what would have been my office visit and pharmacy copays so that they are still being paid out of our pockets instead of the insurers.  Maybe just adding a dollar to every monthly payment by (1) a man and (2) a woman who doesn’t get contraception by choice and (3) a woman who doesn’t get contraception because it is not age-appropriate would cover these costs.  Or perhaps increasing all deductibles by $50 would make up for the difference.

Ultimately is all this spending worth it?  Well, my answer is emphatically yes, because one of the ends of the Affordable Care Act is to expand reproductive health access to many people for whom it was previously cost-prohibitive.  This is a cause I earnestly support.  Even if it means we are all paying higher taxes, deductibles or premiums, I’m happy to support reproductive justice by spending a little more to increase access to reproductive health services.

Dwindling Opportunities for Abortion Provider Appreciation

Amy Krupinski, Resident Blogger (’14, William Mitchell College of Law)

A surreal experience is delivering abortion provider appreciation gifts to doctors’ offices.  First of all, a list of abortion providers has to be assembled, which is a difficult task for safety reasons.  That list is a closely guarded secret.  Then, you go to a doctor’s office, talk to the receptionist and say something along the lines of “because of the decision in Roe v. Wade, abortions are legal in this country and we appreciate the work you do every day to keep them safe and accessible,” and they look at you like they don’t know what you’re talking about because they weren’t even aware the doctor will perform abortions.  That is what it’s like in a state like Colorado, where there were a lot of private doctors’ offices where a doctor would perform an abortion.  Women didn’t have to be seen going into a Planned Parenthood if they didn’t want to.  However, due to the 205 restrictions passed across the country between 2011 and 2013, abortion procedures are limited and eliminated from certain practitioner settings.  It is a lot easier to stop providing them than to watch and wait for the day they’ll come after you for unnecessary doctor and clinic regulations, insurance coverage bans, and pre-viability bans on abortion.  These days around the country, there are significantly fewer stops on abortion provider appreciation day.  There will be no stops in my current community.  So on this Roe Day I spent time reflecting on these different environments and contemplating a remark I read, that it seems that women don’t even realize that abortions are still legal and I wonder where we’ll be in another forty-two years.

Roe Anniversary: A Look at History to Understand Our Present

Jamille Fields, Resident Blogger (Law Students for Reproductive Justice Fellow at the National Health Law Program)

I have always found studying history fascinating. I subscribe to the philosophy that “you can not understand where you are going until you understand where you have been.” That statement definitely applies to the Roe v. Wade victory for abortion rights and the subsequent battles to achieve abortion access. As history teaches us, it is often low-income women and women of color who are most likely to have access to their rights denied—and this holds true today.

To explore how much has changed and remained the same, I explored the organization where I work to understand their abortion rights advocacy throughout the years. The National Health Law Program (NHeLP) is a public interest law firm dedicated to health care access for low-income people. It was founded four years before the Roe v. Wade decision in 1969.

NHeLP, filed an amicus brief in Doe v. Bolton, the other decision issued on January 22, 1973. Here, Georgia law prohibited abortions, except in the cases of rape, severe fetal deformity, or the possibility of severe or fatal injury to the mother. Even in such cases, the law imposed burdensome restrictions, such as requiring three physicians to approve the procedure, and denied access completely to non-residents. NHeLP’s brief called out these restrictions: “It is an undeniable fact that abortion in Georgia and in virtually every other state in the United States is far more readily available to the white, paying patient than to the poor and the non-white.” This line could be pasted into related briefs today as abortion restrictions still disproportionately impact women who don’t have the money and ability to travel to a state with improved abortion access.

In Roe v. Wade, NHeLP’s amicus brief, written in conjunction with the American Public Health Association (APHA), noted the public health concerns raised from the Texas law that prohibited abortions, except to save the mother’s life. The brief notes illegal abortions, at the time, were the greatest contributor to maternal mortality. APHA and NHeLP recognized that women who were denied access to an abortion would often use unsafe means to terminate a pregnancy. Following Roe, the number of women treated for complications related to illegal abortion steeply declined.

Post-Roe but pre-Hyde, Medicaid and other public funding programs treated abortion as an ordinary medical service. (Imagine that!). The percentage of women of color obtaining legal abortions nearly doubled and the percentage of unmarried women also significantly increased.

But, Henry Hyde recognized that while he couldn’t win the victory of taking away abortion rights, the low-hanging fruit was to restrict abortion access for low-income women. (After all, what is a right without access?) The Hyde Amendment took us back to the problem that existed pre-Roe—low-income women, who often are women of color, often cannot access abortion.

At this writing, those who are opposed to abortion (Again!) recognize they may not be able to take away the right to an abortion, but they can trample on abortion access for the most vulnerable. It was surprising recently to see Republican women temporarily thwart the introduction of a proposed twenty-week ban bill. (I thought I was in the Twilight zone). But, I was then hurried me back to reality when the House (Again!) passed H.R. 7 to remove access to abortion for women receiving health benefits through public programs.

So, the fight continues. Today, RJ advocates benefit from the advancements many who came before us achieved. The victory of Roe is to be celebrated. However, if we are to truly apply the RJ framework, then we understand the victory is not yet won until it is won for all.

Rallying for More than Reproductive Health Equity

Rhiannon DiClemente, Resident Blogger (’16, Temple University Beasley School of Law)

This past September, I joined Philadelphia activists in iconic Love Park to share personal stories, educate community members, and call on our politicians to repeal the Hyde Amendment. The Hyde Amendment goes against our nation’s values of liberty and fair and equal treatment under the law by banning federal insurance or health plans, including Medicaid, from covering abortion.

I won’t lie, I was nervous to speak in front of the growing crowd. Despite the fact that I have been piling up student debt for six years now, I am a very privileged person. I know that the cost of an abortion would never prohibit me from exercising my right to one. I thought to myself, “What is my place in all of this?”

As a member of Law Students for Reproductive Justice, I know that 42 years after Roe v. Wade this right which I could exercise so freely still does not exist for many women. Hyde ensures that abortion is a privilege, only accessible if one can afford to pay for it. But repealing Hyde isn’t just a matter of equality, it’s also a matter of justice—justice for women who have long been punished for being victims of the systemic social, political, and economic flaws in our country. As a beneficiary of this system of oppression, it’s my duty to stand up and speak in solidarity with those who never really had the right to choose in the first place.

Here in Philadelphia, we know first-hand how the Hyde Amendment explicitly targets low-income women, women of color, and young women, ensuring that existing cycles of privilege and poverty remain firmly in place. Rally organizer Jasmine Burnett points out that despite being called the “City of Brotherly Love and Sisterly Affection,” “the motto certainly isn’t a reflection of the city’s stewardship to communities in need.”

In the city alone, more than 79,800 women of reproductive age currently utilize public insurance, but Pennsylvania prohibits state Medicaid coverage for abortion care. Local organizations, such as Women’s Medical Fund, provide financial assistance to women who cannot afford to pay for a safe abortion; however, many women still lack the financial means to ensure a safe procedure.

Just in 2011, scandal broke out after Kermit Gosnell was exposed for running a murderous abortion clinic that preyed on economically and socially vulnerable women. While many politicians called for tighter restrictions on clinics and providers, they failed to realize what led so many women to Gosnell’s clinic in the first place—desperation. A woman’s right to choose is the first line of defense. Such unnecessary deaths among the most vulnerable women in our society will continue until affordable, accessible abortion is made part of mainstream medicine.

Looking back, we weren’t just rallying for reproductive health equity that day, we were rallying for racial equality and economic justice. We stood together to demand that all women—regardless of race, age, or income level—be able to realize their constitutional rights. The rally gave me hope that the fight against restrictive abortion policies like the Hyde Amendment is far from over, and we are not backing down.

The Hyde Amendment, Medicaid, and Those Pesky Constitutional Rights

Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)

The battleground of the Hyde Amendment is Medicaid. Despite the rhetoric, this isn’t about not wanting to pay for abortion with taxpayer money because it’s (sometimes) an elective procedure, (sometimes) borne of the woman’s own choices.  Think about it- from a fiscal conservative point of view, there are a lot of good reasons why abortion should be accessible to all women who rely on the government for medical care and want to have an abortion: it is less costly than pregnancy, it is safer than pregnancy, and, crass as it sounds, it does avoid government expenses on another human being.

No, the Hyde Amendment was and continues to be every anti-choice lawmaker collectively throwing up their hands and saying, “Well, we can’t ban abortion entirely because of those pesky constitutional rights.  [sarcastic jazz hands]  And we can’t stop middle and upper class women from spending their own money to exercise that right.  But we can stop poor women from accessing abortion by blocking Medicaid coverage for it.”

SCOTUS found the Hyde Amendment constitutional in Harris v. McRae, but the bright side is that Justice Thurgood Marshall called their crap in one of the most glorious dissents ever penned.  He wrote that “[t]he Court’s opinion studiously avoids recognizing the undeniable fact that, for women eligible for Medicaid — poor women — denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether.”

So how do women on Medicaid access abortion care?  Well, some women find help through a local abortion fund.  Some women live in the District of Columbia or one of 32 other states that cover abortion when the woman became pregnant as a result of rape or incest, or the woman’s life is in danger.  And some women live in one of the 17 states that fund all or most medically necessary abortions- and this is where it gets interesting.  Of those 17 states, four offer abortion care voluntarily, and the other 13 do so pursuant to a court order.

Yes, courts in 13 states have concluded that abortion care for low-income women should be funded on the same terms as other pregnancy-related and general medical care.  The ACLU’s website has a sweet map showing how the laws shake out, with citations to the cases that required those 13 states to cover abortion care.  The cases follow the basic logic that 1) if these women had $400 to drop on an abortion, they wouldn’t be on Medicaid; 2) if the state doesn’t cover this portion of their medical care, they are effectively denying them their rights under Roe v. Wade; 3) the state has no good reason to do so, so 4) the state has to cover abortion under certain circumstances.  These opinions are all awesome and I want to be BFFs with the judges who wrote them.  Read one if you can find time!

The Hyde Amendment: Past, Present, and Future

Elise Foreman, Resident Blogger (’16, Emory University School of Law)

The anniversary of Roe v. Wade on January 22 provides ample opportunity for reproductive rights activists to take a break from the political ring and assess the past year’s victories and losses. Though anti-choicers seemed to squawk the loudest, pro-choicers pushed back and managed to close the floodgates on legislation such as a 20-week abortion ban or restriction on insurance coverage. (For a list of the 113th Congress’ reproductive rights action, see here).  Efforts were similarly focused on repealing the Hyde Amendment, an embarrassment to the reproductive justice movement.

Put into place shortly after the Supremes’ decision in Roe v. Wade, Hyde prohibits the usage of federal funds to pay for abortion, unless in the case of rape or incest. This bill disparately affects low-income women, as it specifically targets Medicaid as the primary vehicle through which funds would be dispersed. (For a history of the Hyde Amendment, see here). This action creates a stratified system of health care, denying the same opportunities based upon income. An estimated 14 million women near reproductive age have Medicaid, with an estimated 4.5 million new enrollees anticipated. (See Planned Parenthood for a further breakdown of these statistics). In addition, federal funds may not be dispersed for federal prisoners or recipients of Indian Health Services.

The Hyde Amendment was originally challenged at the Supreme Court in 1980 through Harris v. McRae. As time can attest, the Supremes upheld the Amendment and disregarded the due process and equal rights guarantees so central in Roe v. Wade. Contrary to their holding, the Hyde Amendment creates a stratified system for women in America, entrenching abortion access in economics and further alienating the poor. The lack of funds may make women desperate to forego rent, electricity or other basic amenities; it may similarly force them to seek unsafe abortions – harkening back to the era of clothes hangers and back alleys which Roe sought to avoid.

The Court maintained the State’s interest in a woman’s pregnancy, and found that the refusal of funds to pay for abortion simply indicated the State’s preference for other activities (such as paying for costs associated with childbirth or prenatal care). But this action effectively brings the State into the doctors’ offices and homes of women unnecessarily. Distinguishing based upon money deepens class schisms and subjugates one under the other; keeping some women from the care they seek based upon their financial status is unjust and unequal.

With this judicial precedent, the onus now turns on activists to continue the fight in the legislature. The repeal of the Hyde Amendment should be prioritized in the upcoming year, signaling that the right to abortion is not premised upon economic underpinnings but rather the right of each woman to choose her own healthcare options without undue government interference.




Expansion of Hyde-like Funding Regulations

Anne Keyworth, Resident Blogger (’16, North Carolina Central University)

For decades, The Hyde Amendment has prohibited the use of federal funds for abortion services. There have been exceptions during some time periods (although not all) in cases of rape, incest, and when the pregnant woman’s life or health is at risk. Because this amendment must be renewed annually, it gives Congress an opportunity to reexamine and consider new language for it every year. Despite what party controls the White House and Congress, we continue to see the Hyde Amendment return in one fashion or another. While progressive lawmakers and advocates for reproductive justice have hoped to see the amendment’s pervasiveness dwindle overtime, it has in fact done quite the opposite: Hyde-like restrictions now are more omnipresent than ever.

Hyde-like restrictions now apply more broadly to federal worker health plans, women in federal prisons, women in the military, Peace Corps volunteers, Native Americans who utilize Indian Health Services, young people covered by Children’s Health Insurance Program, and international family planning programs that utilize funds from outside the United States in performing or advocating for abortion services. Moreover, the same ideology that the Hyde Amendment was created from has been planted in health care reform conversations for an ever evolving debate on both the state and federal levels as to what type of coverage legislators can impose such restrictions upon. Legislators in favor of Hyde-like restrictions have argued that, because the government is providing subsidies on some people’s insurance policies through the Affordable Care Act, the same restrictions must apply to the money provided by the government, effectively excluding many women on such policies from being able to access abortion services through their insurance plans.

Furthermore, states have been allowed to (and more than a third of states have already proceeded to) entirely prohibit abortion services from all policies offered through their exchanges, regardless of whether the person is receiving government subsidies or not. Some states have even prohibited private insurance companies from covering abortion services, even when not being sold through the exchange.

On a broad level, these restrictions impose upon women the notion that our government, as well as whoever is providing insurance coverage, is in a position to govern and direct what types of health care decisions women may make and what resources are available to them depending on their choice. But what such restrictions do to lower income and marginalized women specifically is even more invasive: it effectively deprives them entirely of any manner of exercising a meaningful right to choice. These women often do not have other resources for accessing the funding necessary to obtain an abortion, and by completely removing abortion coverage from insurance coverage, it renders them virtually unable to exercise their full spectrum of choices. It is time that our legislator’s reassess the impediments that Hyde-like funding has on a woman’s liberty, and stop insisting on making abortion services such a difficult right to access for so many of our women.