Thursday, March 15, 2018
By Sital Kalantry, Clinical Professor of Law at Cornell Law School and author of Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India.
The Chicago-based Court of Appeals for the Seventh Circuit heard an appeal from Indiana last month which will decide whether a state can specify the reasons a woman can terminate her pregnancy. The law in question, signed in March 2016 by then-Governor Mike Pence, prohibits a woman from aborting a fetus on the basis of its sex, disability (including Down syndrome), race, color, national origin, or ancestry.
The lower court, the U.S. District Court Southern District of Indiana, found that the reason-based bans are clearly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey. That court found a state may not prohibit any woman for terminating her pregnancy before viability for any reason. The court also found the portion of the law that required abortion providers to inform their patients of the anti-discrimination provisions and the types of abortions those provisions prohibit and a portion of the law related to fetal tissue disposition were also found to be unconstitutional. The State of Indiana has now appealed this decision, bringing it to the Seventh Circuit.
Ten states have laws to punish doctors for performing an abortion knowing the woman is seeking it because she doesn’t want a child of a certain sex. There are injunctions in place in three of those states. For example, the sex-selective abortion ban in Arkansas was enjoined by a lower court because it was likely unconstitutional. In 1984, Illinois was the first to adopt a ban on sex-selective abortion, but the state eventually agreed to limit the statute only to abortions post-viability after the U.S. Supreme Court’s decision in Casey in 1993. Other states have other forms of reason-based restrictions: North Dakota and Ohio bans disability-selective abortion and Arizona has enacted a race-selective abortion ban.
Reason-based bans are sweeping the nation, particularly sex-selective abortion bans. If states are allowed to limit the reasons for which a woman can terminate a pregnancy, it will drive a huge hole into reproductive choice. Women will be subject to questioning about their motives, an inquiry that can be humiliating and invasive for someone already embarking upon what is likely a difficult decision. When medical professionals face criminal penalties for performing an abortion for the “wrong” reasons, this creates a strain on the doctor patient relationship, and jeopardizes the quality and accessibility of health care services overall.
The state of Indiana and other advocates for reason-based bans on abortion claim that the bans are needed to address discrimination in society. Using misinterpretations of narrow demographic data, anti-abortion advocates have even convinced some pro-choice legislative representatives that the bans on sex selection are needed to prevent widespread abortion of female fetuses among Chinese Americans and Indian Americans. This dominant (and false) narrative misrepresents data in order to play upon feminist concerns related to the desire of some people in some Asian countries to have at least one son. Playing on this stereotype has been successful: over half of state legislatures and the majority U.S. House of Representatives have voted to consider bans on sex-selective abortion.
Anti-abortion groups have also received support from some disability rights groups for bans on disability-selection abortion. An amicus brief in the Indiana case submitted by Down Pride, Saving Down Syndrome, Fondation Jérôme Lejeune, and Women Speak for Themselves, argues that permitting disability selective abortion risks eliminating entire communities of people with disabilities. This disability-selection ban would also prevent abortions for women whose fetuses have been diagnosed with severe disabilities and may require life-time medical care or whose children may die soon after birth.
Anti-abortion advocates also claim that race-selective abortions are needed to prevent the disproportionate rate of abortion among African American and Latina women. Indeed, some African American pro-life groups, such as the National Black Pro-Life Coalition, have spoken in support of such bans. Although the disproportionate rate of abortion among some minority groups is an issue worthy of examination, the notion that minority women are racially discriminating against their own fetuses is absurd, and cannot sustain a straight-faced discussion.
The U.S. Court of Appeals for the Seventh Circuit should find pre-viability reason-based bans to be unconstitutional under Roe and Casey. The constitutional status of post-viability bans is less clear. In light of the most recent reproductive rights case, Whole Woman’s Health, the Seventh Circuit may undertake a cost/benefit analysis if it applies the “undue burden” test to post-viability sex-selective abortion bans. In such a scenario, pro-choice advocates could argue that sex-selective abortion bans in particular will create a tension in the relationship between a medical professional and her patient, could lead to racial profiling by medical professionals, and will burden the rights of women who desire to obtain non-selective abortions. Importantly, the composition of the justices and whether or not they follow the dominant narrative put forth by anti-abortion activists (for example, that such bans are necessary to prevent widespread sex discrimination amongst Asian Americans) could also have a great impact on the ultimate decision of the Court.
If the Seventh Circuit decides that the Indiana reason-based bans are constitutional, many states will rush to limit the specific reasons for women obtaining abortion. The result may well be a Handmaid’s Tale-esque dystopia, where only a few are deemed to be the “right” reasons. Perhaps we will be headed in the direction of many of our South American neighbors that permit abortion only in the case of rape and to save the life of the mother. No matter how the Seventh Circuit rules, the case is likely headed to the U.S. Supreme Court. If reason-based bans are deemed to be constitutional, it will significant restrict women’s reproductive choice in many ways.
Wednesday, June 21, 2017
Women’s Human Rights and Migration, has just been published as part of University of Pennsylvania's Human Rights book series. In the book, Prof. Sital Kalantry describes how the U.S. Congress and state legislatures across the country have used stereotypes Indian-Americans and Chinese-Americans to restrict women’s rights to choose. The legislators misuse information about people living in other countries to argue that certain minority groups are aborting female fetuses. Using new national census data and survey data, the book presents evidence that some Asian Americans desire to have balanced families with both girls and boys. Practices like sex-selective abortion and veiling that occur in the country of origin of a migrant but also emerge or are attributed to migrants in their country of destination call into question traditional universal approaches human rights. Kalantry argues for a transnational approach to domestic regulation on migrant women’s practices. Read more about the book here. You can look inside the book and purchase at Amazon.
Tuesday, June 20, 2017
by Cindy Soohoo
Since the Presidential election last fall, we’ve seen intensified attacks on women’s reproductive health. In the current political environment, it’s even more crucial that U.N. human rights bodies call out the U.S. when it violates human rights. Yesterday, United Nations human rights experts sent a letter to the U.S. government expressing concern about criminalization of abortion and the declining access to reproductive health services. The letter welcomed state efforts to turn back the “negative trend on women’s reproductive rights” and urged states to adopt laws to help ensure that women’s human rights are respected, like the Reproductive Health Act currently pending in the New York state legislature.
Human rights bodies have repeatedly recognized that women’s access to reproductive health services implicates multiple human rights including the right to dignity, autonomy, personal integrity, health, non-discrimination and freedom from cruel, inhuman and degrading treatment. Given the range of rights involved, U.N. experts on health, violence against women, and discrimination against women banded together to write a joint letter to the U.S. expressing their concerns.
The experts’ letter focused on two current threats to reproductive rights – “the failure to provide adequate access to services for the termination of an unwanted pregnancy” and the “criminalization of abortion.” Last year, the U.N. Working Group on Discrimination Against Women criticized the “ever-increasing barriers . . . created to prevent [women’s] access to abortion procedures” in the U.S. Yesterday’s letter reiterated these concerns and specifically focused on laws that allow women to be criminally prosecuted for terminating their own pregnancies.
The human rights experts emphasized that criminalizing women for having abortions “instrumentalizes women’s bodies, undercuts women’s autonomy and puts their lives and health and risk” because women who experience complications will not seek medical help for fear of prosecution. The letter also warned that because symptoms of spontaneous miscarriage and self-induced abortion can be similar criminalizing abortion often results in “collateral consequences, including the imprisonment of women who have had miscarriages.” Last month, the experts criticized an El Salvador law criminalizing abortion noting that, in addition to violating the rights of women who chose to terminate their pregnancies, the law resulted in the arrest and prosecution of women who suffered miscarriages.
Human rights law emphasizes that governments must ensure that people can meaningfully access their human rights. In the U.S. context, this means that a constitutional right to abortion is not sufficient if women cannot actually access abortion and family planning or are punished or penalized for their reproductive health choices. The experts expressed concern that criminal prosecution of self-induced abortions “has discriminatory effects on economically disadvantaged women whose limited resources render them unable to access safe reproductive health services in the same manner as privileged women.”
In addition to the onslaught of anti-choice laws that are being passed in Texas and other states, laws criminalizing women who have abortions are often remnants of laws passed before Roe v. Wade that were never repealed. For instance, New York still has a pre-Roe law on the books that imposes criminal penalties on women for self-inducing an abortion. It also criminalizes health care providers who perform abortions after 24 weeks -- even if the abortion is necessary to preserve a woman’s health or if the fetus is not viable. Human rights bodies have recognized that forcing a woman to continue a pregnancy knowing that the fetus she is carrying will not survive is cruel, inhuman and degrading treatment. And denying a woman access to an abortion when necessary to preserve her health violates the U.S. Constitution.
The experts’ letter is addressed to the U.S. government, but the experts aren’t holding their breath awaiting a reply from the Trump Administration. Instead, the letter urges New York to pass the Reproductive Health Act, which would repeal the criminal abortion provisions, and encourages similar state efforts to bring their laws in compliance with human rights law.
Wednesday, May 31, 2017
The rights guaranteed in the Universal Declaration of Human Rights are quickly being eroded in the United States.
In an assault on women, the Trump Administration has announced proposed changes that will severely curtail women’s autonomy.
The administration announced that it is reviewing rolling back a rule that mandates employers who provide health insurance to cover birth control. Closely held businesses employers were found exempt from the mandate in the Hobby Lobby decision based upon religious freedom. This executive order expands the exemption to all employers who decline to cover birth control upon grounds of conscience, that is religious grounds. This action, under cover of religious freedom, greatly expands employer choice while further limiting women's reproductive choices. The disdain and disregard in which this administration holds women has never been subtle. This latest assault particularly affects poor women. In completing the cover sheet that will accompany the rollback, the administration responded “no” to the query as to whether the change would be economically significant.
The administration has demonstrated its inability to understand circumstances of those who live outside of the white, wealthy circles in which the president confines himself. Women of the 1% are unlikely to experience adverse consequences of this rollback. While wealthy women are more likely to enjoy expansive health benefits, the out of pocket cost of birth control will not force them to make difficult budget choices. Forcing lower income women to choose between food and birth control or transportation to work and birth control, removes from them one of the few “choices” they have. The economic impact is significant.
While attending the January Women’s March, I saw an older woman carrying a sign pronouncing “I’m too old to be demonstrating against this *s__t* ” I get it. We thought we had won this battle in the 70’s. Mad Men is back.
Monday, March 20, 2017
Over the course of the past few weeks, women's organizations have reviewed Judge Gorsuch's record in an attempt to determine his understanding of the myriad legal issues women face. Judge Gorsuch by and large has not appreciated the difficulties of women's lives and how laws and policies can have a disparate impact on them.
The National Association of Women Lawyers found Judge Gorsuch to be "not qualified" on women's issues. The organization's Supreme Court Committee members, of which the author is one, review candidates' opinions and other writings and conduct interviews with a wide number of people who have interacted with the candidate in various capacities. While the committee found that Judge Gorsuch generally treated litigants and lawyers with respect, and that he has the intellectual capacity for the position, his record on issues important to women displays a lack of understanding. In a press release containing the committee's findings, the committee noted concerns around the Judge's giving religious freedom rights deference over women's reproductive rights. Likewise, the committee noted "Judge Gorsuch's writing also exhibits a reluctance to recognize precedent that applies substantive due process to protect the rights of women." The committee further noted concern in other areas, including his failure to recognize transgender women as women thus denying them rights that are afforded to other women.
The National Women's Law Center also issued their report on Judge Gorsuch. Concerned with Judge Gorsuch's lack of support for regulatory authorities, the Center's press release stated: "Judge Gorsuch has explicitly praised Justice Scalia's approach to the law. While he has not opined on Roe v. Wade, he voted to override a woman's coverage of contraception if her boss objected. Justice Scalia was highly skeptical that courts should defer to the interpretations of laws by expert government agencies - and Judge Gorsuch would go even further, making it harder for agencies to implement the laws that have literally opened doors of opportunity for women and girls."
Thursday, January 26, 2017
Starting his first full week in the oval office, President Trump took the first step to end all federal funding for Planned Parenthood.
The executive order implements the Global Gag Rule. Even though the US funding of international health care is not used for abortion, the administration has declared that any organization receiving US funds is prohibited from providing any abortion services, including from discussing abortion as an option for women's health or providing abortion referrals, even if none of the health care information is disseminated using US funds. The rule, implemented in prior administrations, was not in effect during the Obama years.
This is step number one in the movement to dismantle Planned Parenthood. No federal money is used for abortion services in Planned Parenthood's budget. Indeed, much of Planned Parenthood's work is the provision of non-abortion health services. But we can look toward Congress to submit legislation that will demand a gag rule on Planned Parenthood, as well.
This will be the next big issue for women to challenge in an organized way.
One suggestion that came out of the marches is for protesters to create a rapid response as events unfold. So here is one suggestion from my rapid response team: donate $5.00 to the only women's clinic in Mississippi that provides comprehensive reproductive health care.
Thursday, September 1, 2016
By Jeremiah Ho
A new lawsuit has been filed just within the last few weeks in federal district court in New Jersey by one unmarried and two married lesbian couples against the state’s insurance commissioner. Essentially the lawsuit is challenging the definition of the word “infertile” under the New Jersey’s insurance mandate for covering medical expenses associated with the treatment of infertility. The case, Krupa v. Badolato, is an interesting one as the plaintiffs, who wish to conceive but are biologically infertile, are claiming that the current definition of “infertility” excludes them from coverage under the insurance mandate because of the definition’s reliance on “unprotected sexual intercourse” in determining who could be infertile.
The plaintiffs claim that for qualifying as “infertile” for infertility treatment coverage the phrase “unprotected sexual intercourse” requires them to show that they had heterosexual intercourse for the requisite period but then failed to conceive. They assert that such showing is problematical because it requires them to prove a failure to conceive after having unprotected sexual activity with male partners, which, as lesbians in committed relationships, was an impossibility to them. As a result, each couple claims they were denied coverage for infertility treatments that ended up costing tens of thousands of out-of-pocket dollars.
But beyond the monetary harms asserted in this lawsuit, it is the dignitary spin on sexual orientation and reproductive rights that catches one’s attention. The plaintiffs here are suing under 14th Amendment equal protection and due process theories. First, the equal protection theory articulates that “because infertile women in same-sex relationships do not engage in sexual intercourse with men, they are left with no way to qualify as ‘infertile’ under the statute and its implementing regulations in order to trigger the mandate.” Therefore, they situate themselves as a class discriminated based on their sexual orientation.” The plaintiffs’ due process theory relies on a violation of their reproductive rights.
On either theory, the implications of furthering constitutional litigation over sexual orientation seem eminent. From reading the complaint, the plaintiffs are plainly seeking leverage on the equal protection claim from Obergefell v. Hodges, but bringing the issue of protections for sexual orientation further by claiming suspect or quasi-suspect classification. The case seems to raise questions about orientation that are ripe for a revisit after Obergefell. First, the sexual conduct of these lesbian couples—or their lack of a type of sexual conduct—in regards to showing heterosexual unprotected sex conjures that old distinction of conduct that was permissible and conduct both expressive of sexual identity and simultaneously punishable by the law (remember Bowers v. Hardwick or its reversal in Lawrence v. Texas?). Here, it seems possibly that the couples were punished for not having heterosexual sex in order to prove infertility. Additionally, as it appears in the complaint, it seems as though they were punished for wanting to exercise their abilities to treat their infertility in order to improve their chances for having children (remember Griswold, Casey, and Wade?). The connection from the plaintiffs’ scenarios and to burdens on reproductive rights could lead to an expansion of existing constitutional caselaw.
But also, the plaintiffs seem to want a declaratory relief directly over sexual orientation, which they are possibly couching as something beyond conduct—rather “a core, defining trait that is so fundamental to one’s identity that a person may not legitimately be required to abandon it (even if that were possible, which it is not) as a condition of equal treatment.” Other than immutability (as articulated above), the plaintiffs preliminary balance the other three Frontiero factors as well in favor of determining sexual orientation as a protectable trait under the Equal Protection Clause.
Already the case is garnering attention from news outlets. This will be a lawsuit to watch.
Wednesday, June 29, 2016
The Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt to strike down two provisions of a Texas law that would have closed more than 75% of the state’s abortion clinics was a major victory for women’s rights. As I explain in an earlier post, the decision should deal a fatal blow to TRAP laws (targeted regulation of abortion providers), sham laws that purport to be health regulations but really are designed to impose onerous unnecessary requirements on abortion providers making it difficult or impossible for them to remain open.
Justice Breyer’s opinion makes it clear that the undue burden standard requires courts to balance the “burdens a law imposes on abortion access together with the benefits those laws confer.” The opinion also rejects the Fifth Circuit’s position that courts should defer to the legislature and not consider whether a law purporting to be a health regulation actually has any medical benefit, emphasizing that a higher level of judicial scrutiny is required when a constitutionally protected liberty is at stake.
Given the sham nature of Texas’ health justification, it’s not surprising that Justice Breyer’s opinion spends a significant amount of time showing why the Texas provisions do not provide any health benefit. Because the undue burden standard balances the burden and benefits of abortion restrictions, the lack of any health benefit significantly influenced the Court’s determination that the provisions are unconstitutional. But, perhaps as a result of this, the opinion spends less time discussing the burden imposed by the law and the impact of the provisions on women.
Notably absent from Justice Breyer’s opinion and Justice Ginsburg’s concurrence is any discussion of the significance of abortion in women’s lives and the reason why state laws designed to undermine women’s access to abortion violates their fundamental rights. Perhaps this indicates that the Court (with the exception of Justice Thomas) so accepts Planned Parenthood v. Casey’s holding that a woman’s right to choose to terminate a pregnancy is “central to [her] personal dignity and autonomy [and] the liberty protected by the Fourteenth Amendment” that the court does not feel the need to repeat it.
But it would have been nice to hear the Court reaffirm reproductive choice as essential to women’s liberty and autonomy and perhaps even recognize that access to abortion also implicates other fundamental rights. International human rights law and countries around the world recognize that access to abortion can implicate women’s right to health, right to be free from discrimination based on gender and socio-economic status, and right to be free from torture and cruel and inhuman and degrading treatment. Indeed, Mellet v. Ireland, a recent case from the U.N. Human Rights Committee, found that Irish laws criminalizing abortion in most circumstances violated the human rights of a woman who sought to terminate a pregnancy after learning that the fetus she carried had a fatal genetic condition. Ireland’s abortion restrictions forced her to travel from her home in Dublin to Liverpool England (approximately 136 miles away) to obtain an abortion. The Committee found that, under the circumstances, forcing Mellet to travel out of the country to obtain an abortion constituted cruel, inhuman and degrading treatment, violated her right to privacy and constituted impermissible discrimination.
Although the challenged Texas provisions did not make it illegal for women to obtain a pre-viability abortion, like the restrictions in the Mellet case, they would have forced many women to travel hundreds of miles to obtain an abortion. Some women forced to travel may have been the victims of rape or domestic violence, carried a fetus with a severe fetal anomaly or experienced other circumstances making it more likely that the restrictions violated their right to be treated humanely and with dignity.
In Mellet, the Human Rights Committee specifically recognized that prohibiting access to abortion and forcing women to travel great distances to obtain treatment constitutes discrimination. In a concurring opinion, Committee member Sarah Cleveland explained that interference with women’s access to reproductive health services can violate their right to equality and non-discrimination by denying access to health services like abortion that only women need.
Cleveland also found that Ireland’s law constituted discrimination based on socio-economic status because forcing women to travel to get health services results in unequal access to care based on income. Recognizing the disproportionate impact of restrictions that limit access to health care services on poor women is important because the district court in Whole Woman’s Health found that the Texas provisions “erected a particularly high barrier for poor, rural or disadvantaged women.”
Although the U.S. Supreme Court did not recognize discrimination based on socio-economic status as an independent basis to strike down the Texas provisions, Justice Breyer made it clear that the undue burden standard requires that the Court consider whether the restrictions imposed a substantial obstacle in the path of certain women seeking an abortion even if they did not have the same impact on all women of reproductive age in Texas. And lower courts have recognized that application of the undue burden standard requires consideration of the ways abortion restrictions interact with women’s lived experiences. These aspects of the undue burden test will be crucial to ensuring that the test not only strikes down sham TRAP laws, but also protects the right to abortion for all women.
Tuesday, June 28, 2016
Today the US Supreme Court let stand two lower court orders enjoining implementation of restrictive (if not impossible) abortion provider requirements that would have placed an undue burden on both women seeking abortions as well as their providers. Both Mississippi and Wisconsin laws would have required that providers have admitting privileges at hospitals within 30 miles of the abortion clinic. The Mississippi law, if implemented, would have resulted in women having to go out of state for an abortion as the only clinic left in-state would have been required to close.
Tuesday, May 17, 2016
by Margaret Drew
On Monday, the Supreme Court decided Zubik v. Burwell by not deciding. The court remanded the consolidated cases to their various intermediary courts. The Court suggested that the lower courts, all but one of which upheld the government mandate providing access to birth control even for those employed by religious organizations, might find that the parties are able to reach solutions that protect women's access to birth control in ways that do not infringe on religious rights. Thoughtful analyses have been written on this per curium decision, such as those noted on SCOTUSBlog.
My reflection focuses on process, rather than substance. While the Court suggests that in any settlement, women's right to birth control access must be protected, the court does not provide specific guidance on how the parties will reach settlement. The court has taken an approach more commonly found in trial courts. Encouraging settlement or engagement in ADR processes is common, if not required, in trial courts. Some appellate courts also recommend or demand settlement discussions prior to scheduling cases for argument.
In a time when angry philosophical divides inhibit discussion of finding common ground, the Court has effectively designed a plan for the parties to accommodate each other's concerns while preserving constitutional protections. The Court did so by first requiring the parties to submit written plans on what settlement might look like. Presumably the exercise informed the court on whether the parties could approach solution. This week's decision remands the cases with the knowledge that settlement is possible because the parties have already designed accommodating plans through their Court submissions.
More importantly, the court has shifted focus from divisiveness to compromise. Historically, this is the art of politics -- an art that has been rejected of late. Beyond finding resolution of the case in controversy, the Court is providing guidance to the public as well as to other government branches on how to find meaningful resolution. The Zubik controversy is an emotional one. The stakes are high for women as well as for religious employers. If common solutions can be found in this case, there is no reason why compromise should be rejected as a means of resolution in most political disputes. Even if the parties cannot accommodate the separate interests, the attempt is significant. The Justices may be best suited as leaders and teachers in demonstrating how reasoned collaboration protects interests while promoting cooperation. Indeed, the Court employed this process in reaching its per curium decision, modeling the art of reasoned cooperation.
Wednesday, March 9, 2016
Following last week's argument in Whole Woman’s Health v. Hellerstedt, commentators have focused on the impact of the women on the Court. One area where Justices Ginsburg, Sotomayor and Kagan made their presence felt was on the quality of the Court’s discussion of women’s health. Collectively, they (with significant help from Justice Breyer, and even some from Justice Kennedy) probably spent more time considering the health impacts of Texas HB2 than the entire Texas legislature did when it passed the law.
And it was appropriate that they did. Since it would be unconstitutional for Texas to pass a law with the purpose of preventing women from having abortions, the Texas Solicitor General had to argue that HB2 was enacted to protect women’s health. Petitioners have maintained that by delaying or preventing women’s access to abortion, the law actually increases the health risks that women face.
The challenged law imposes two requirements: (1) that doctors who perform abortions have admitting privileges at hospitals within 30 miles and (2) that facilities that provide abortions meet the requirements of an ambulatory surgical center (ASC). Collectively, the requirements will result in closure of three-quarters of Texas’s abortion clinics (About half of Texas’s 40 clinics closed when the admitting privileges requirement went into effect. The ASC requirement has been stayed).
The Texas SG tried to make broad, conclusory statements that the additional requirements would make abortion provision safer, but the Justices pushed back asking the SG why the requirements were necessary given the nature of abortion procedures – medical abortion just requires women to take two pills and early surgical abortion does not even involve general anesthesia - and the procedures’ extremely low complication rates.
Justices Sotomayor questioned the necessity of having a woman “travel 200 miles or pay for a hotel” to take 2 pills for a medical abortion in an ambulatory surgical center. When the Texas SG later tried to argue that the ASC requirement was necessary in case complications arose, Justice Ginsburg shut him down, noting that if complications arose from a medical abortion, they would happen several hours later after the woman returned home.
The Justices also took note that the risks associated with abortion are extremely low, less than 1% (the risks of a colonoscopy are 28 times greater) and did not justify the ASC or admitting privileges requirement. Justice Sotomayor pointed out that surgical abortion is essentially the same medical procedure as the treatment women receive following a miscarriage, but Texas has not imposed additional requirements for treatment of miscarriages. After Justice Ginsburg noted that early stage abortion is “among the most safe” and “least risk procedures” and that child birth is much riskier, the Texas SG made the mistake of trying to disagree with her. Justice Ginsburg shot back, “Is there really any dispute that childbirth is a much riskier procedure than early stage abortion.”
Several Justices also showed real concern about the law’s negative impact on women’s health. Justice Kennedy noted that the law appeared to be increasing surgical abortions as opposed to medical abortions in Texas, which “may not be medically wise.” Justice Sotomayor expressed concern that the lack of access to legal clinical care would bring us back to the time before Roe v. Wade, where women were forced to get abortions from unlicensed providers. And, Justice Breyer questioned Texas’s health purpose given evidence that lack of accessibility will increase self-induced abortions and the risk of “many more women dying.”
The Justices also emphasized the need to consider how the law affects access to care for all Texas women. Justices Kagan and Ginsburg pushed back on the Texas SG’s statement that the law would leave abortion facilities in metropolitan areas. Justice Kagan pointed out that in 2012 less than 100,000 women lived more than 150 miles from an abortion provider, and as a result of the law 900,000 women would live further than 150 miles from a provider and 750,000 further than 200 miles. Justice Ginsburg emphasized that in determining women’s access to abortion under Planned Parenthood v. Casey, “the focus must be on the ones who are burdened and not the ones who aren’t burdened.” Thus, the Court’s inquiry should not focus on the women who live in Austin or Dallas but “the women who have the problem who don’t live near a clinic.”
Many of the questions posed by Justices Ginsburg, Sotomayor, Kagan and Breyer revealed skepticism about Texas’ asserted health justification for the requirements. In responding to questions about availability of services, the Texas SG stated that women in West Texas could obtain abortions in New Mexico. Justice Ginsburg questioned how Texas could rely on women traveling to facilities in New Mexico, which does not impose admitting privileges or ASC requirements.
The Texas SG was repeatedly questioned about the lack of evidence of a need for the new restrictions and the fact that Texas did not act to impose similar requirements on much riskier procedures. He consistently responded that the Texas legislature can set much higher standards on facilities that provide abortion than facilities providing much riskier procedures. Then, Justice Kagan asked the question that was on everyone’s mind, “I just want to know why Texas would do that?”
Wednesday’s argument is a good indication that at least half of the Justices understand and take the impact of the Texas law on women’s health and access to abortion seriously. Hopefully, that understanding and respect for women’s health will be reflected in the Court’s decision.
Monday, February 29, 2016
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.
Thursday, January 28, 2016
The Kansas Appeals Court last week blocked a law that would have placed restrictions upon a woman's right to obtain an abortion. The decision was split, 7-7, which is determined to support the lower court decision, in this case an analysis that the Kansas state constitution protects a woman's right to abortion. The 2015 law in question would have outlawed the surgical procedure dilation and evacuation which is considered the most common and the safest abortion procedure for second trimester abortions.
The lower court judge analogized the Kansas constitution with the federal one, stating that both constitutions provide the same protections and that the law created an impermissible obstacle.
Then this week tables were turned on anti-choice activists who had demanded an investigation into Planned Parenthood. Houston prosecutors had been urged to investigate Planned Parenthood for what anti-choice advocates claimed to be the entities' illegal disposal of fetal tissue. Part of the evidence the advocates alleged implicated Planned Parenthood, were illegally made videos. Investigators said that the grand jury considered evidence for over two months. Rather than indict Planned Parenthood, the jury indicted the two advocates who engaged in the surreptitious film making. They were indicted on felony charges of tampering with a governmental record and misdemeanor related to purchasing organs.
Once again, Planned Parenthood is being proactive. The organization has sued abortion opponents claiming a three year criminal enterprise to target the organization. The advocates are alleged to have used illegal techniques in attempting to discredit Planned Parenthood.
The new, aggressive policy of suing opponents that harm, or attempt to harm, the organization is a responsible and effective tactic that seeks consequences to those who attempt to defame and dismantle Planned Parenthood.
Sunday, January 10, 2016
According to Arizona state legislators some minority women abort fetuses because of their race. In 2011, Arizona passed a law prohibiting an abortion provider from performing an abortion on a woman who wants to abort her fetus because of its race and/or sex. The American Civil Liberties Union (ACLU) sued Arizona arguing that this law violates the Equal Protection Clause of the U.S. Constitution, because it stigmatizes minority women by suggesting that they discriminate against their fetuses (assuming that it is even possible to do that).
But just a few weeks ago, the United States Court of Appeals for the Ninth Circuit denied the petitioners in the case, the National Association for the Advancement of Colored People (NAACP) and National Asian Pacific American Women's Forum (NAPAWF), their day in court. The Court rejected the appeal on standing even before getting to the constitutional issues, because the ACLU did not bring forth a woman who wanted to abort her fetus due to its race and/or sex. Perhaps because few (if any) such women exist.
It is true that the rate of abortion among African American women is five times higher than among Caucasian American women and for Latina women it is twice as high. Anti-abortion advocates argue that this occurs because abortion providers target minorities for abortion services in an attempt to reduce the number of people of color that are born. On the other hand, pro-choice advocates argue that the disproportionately higher rates are due to a lack of access to and failure to use contraception.
The logic of the Arizona race-selective ban is tortured because it is structured like its more popular cousin, the sex-selective abortion ban, which prohibits women from aborting their fetuses because of its sex. Sex-selective bans have been introduced in over half of the state legislatures in the United States and passed by eight states. On the other hand, Arizona is the only state in the United States that bans both race-selective and sex-selective abortion; eight other states and the United States Congress have considered and rejected race-selective abortion bans (although the majority of the U.S. House of Representatives voted in favor of both race-selective and sex-selective bans in 2012).
Proponents of sex-selective abortion bans argue that Asian Americans discriminate against the sex of their fetuses and this causes a disproportionate number of abortions of female fetuses. They further incorrectly argue that there are "missing women" in the United States. They then apply this logic to race to argue that race discrimination causes a disproportionate number of minority fetuses to be aborted.
However, the analogy falls apart when the actors with the purported racist and sexist intent are brought into the picture. In the case of sex-selective abortion bans, proponents argue that the sexist beliefs of Asian American parents cause them to obtain the abortions. To the extent sex-selective abortions are occurring in the United States, it would appropriate to argue that they occur because of a parent's desires for a child of a particular sex. On the other hand, it makes no sense to argue that women abort their fetuses because of a particular racial preference of their fetus. Yet, the Arizona law assumes that minority women abort their fetuses because they do not desire to have minority children.
The disproportionate rate of abortions among minority communities in the United States is an important concern that should be investigated, discussed, and solved. The Arizona law is not intended to do that. While it is unlikely that anyone will ever be prosecuted under the Arizona law, the statute itself is offensive. It also strains the patient-doctor relationship. By denying the appeal, the United States Court of Appeals for the Ninth Circuit has missed an opportunity to strike down state laws that use racial and gender equality as a ruse to restrict abortion rights.
Editor's Note: This piece originally appeared in The Huffington Post
Monday, January 4, 2016
Three Ohio legislators plan on filing a bill that would require women who miscarry or abort to cremate or bury the fetus. Significantly, the drafters made no attempt to appear gender neutral. They have placed the burden for cremation or burial exclusively on mothers. Misogyny undisguised. The legislators gave no thought to the trauma that women can experience when miscarriage occurs. Whether an abortion is spontaneous or planned, many women struggle with the often difficult decisions and emotions that surround both. Disregard toward women is exposed in this bill, as is the assumption that women alone are responsible for their pregnancies.
In what appears to be an unintended offense, the bill ignores the reality for many men, as well. Men often participate with their partners in decision making on whether or not to carry a pregnancy to term. Men also suffer when unwanted miscarriage occurs.
The legislators are not original, however, because Arkansas and Indiana have already passed similar laws. The legislators took up the cause once Attorney General Mike DeWine was proven wrong on his claims around Planned Parenthood's fetal donation program. Searching for a way to keep fetus disposal alive as a political issue, these legislators took up the cause in promoting the cremation or burial scheme. DeWine moved on to claims that Planned Parenthood is disposing of fetus in landfills. Planned Parenthood has had enough. The organization obtained an injunction against DeWine from taking any action to block its fetus disposal.
Perhaps these men are unable to see themselves as part of a global anti-female culture. The New York Times reported on the sexual and other violence against Syrian women refugees as they attempt to make a new life in another country. Women are victims of war in ways that men are not, notably because of the sexual violence they experience. Whether the abuse is sexual, physical or legislative, the ultimate impact, if not one goal, is to remove women's control over their bodies and their lives. It is all one.
Friday, December 11, 2015
Following up on Cindy Soohoo's post earlier this week, this post examines the ongoing denial of autonomy to women. The denial is promoted by the federal and state governments.
In yesterday's post, Prof. Soohoo mentioned a particularly brave abortion provider in Alabama. This past week, representatives of the Working Group on Discrimination Against Women in Law and Practice visited Birmingham. As reported by Amy Yurkanin, Committee members made the stop to explore abortion restriction, criminalization of drug use during pregnancy and restrictions on contraception.
The committee noted that women are denied access to reproductive choice not by directly outlawing abortion, but by making access so restrictive as to create virtual abortion bans. Yurkanin quoted Frances Raday of Israel saying "America looks as though it is joining the regional plague. They are doing it by making abortion not accessible instead of illegal." This term, the Supreme Court will address restrictions that lead to abortion clinic closures in the case of Whole Woman's Health v. Cole.
As Yurkanin further reported, "Lucia Hermo of the ACLU of Alabama described the laws that have been passed to restrict abortion, including one that would assign lawyers to the fetuses of pregnant teens seeking abortion without parental consent. That law is under review by a federal judge." While Alabama seems eager to appoint counsel for a fetus an underage teen seeks to have an abortion, should that child be born, the state will not provide counsel for either the child or the child's mother when protection from an abusive father is sought or when the child is in the middle of custody dispute.
The widely accepted substitution of the medically correct term "fetus" for "unborn child" has created the climate where state prosecutors manipulate laws designed to protect living children into tools of female prosecution. Both Tennessee and Alabama are enforcing their chemical endangerment of a child statutes by arresting and prosecuting women who use drugs during pregnancy. In Wisconsin, a similar law has been in effect since 1998, and is used in cases where pregnant women with a history of drug use are arrested and confined against their will. In a phrase that rejects treating all with dignity, those women are referred to as "cocaine moms." The enforcement against pregnant women discourages them from disclosing past drug use and seeking help for current addictions.
We have sanitized the discussion. Many hold sincere religious beliefs that are the source of their moral opposition to abortion. But those beliefs do not justify laws that result in disparate gender impact and does not excuse legislators who lack the courage to oppose legislation based in the promotion and imposition of those beliefs. Likewise, community religious beliefs do not eliminate the obligation of lawyers and judges to begin any analysis with the gender discriminatory impact of laws that purport to promote health. Reproductive rights restrictions and other legislation targeted toward women, and in particular mothers, are not gender neutral and must be redefined in the broader framework of the ongoing oppression of women. Any other rationale is a disguise.
Tuesday, December 8, 2015
Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics? Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood. Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr.
But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers. The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions. For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.
In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time. He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.”
Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women. A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).” She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.”
Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year. And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment. To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests. All to ensure that women are able to make their own reproductive health decisions.
The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights. In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . . health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”
Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas. The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”
For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders. Let’s change the dialogue and recognize them as the heroes they are.