Friday, March 24, 2017
Business Insider (March 21, 2017): If you care about the future of abortion rights, now is a good time to worry, by Jessie B. Hill:
Although there is no immediate threat to Roe v. Wade, Professor Jessie Hill discusses why supporters of abortion rights should be worried. She writes:
But the real danger may be not so much that things will radically change – it’s that they’ll remain the same. From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the landscape looks about as treacherous as it ever has.
Despite the Supreme Court's decision in Whole Woman's Health v. Hellerstedt last term finding two provisions of a Texas statute unconstitutional, states continue to adopt new restrictions on abortion. In 2016, 18 states adopted 50 new pieces of anti-abortion legislation. While the balancing test applied in Whole Woman's Health the Court allowed the court to take into account that there was no evidence to support the state's claim that it enacted the provisions to protect women's health in determining the benefits and burdens of the law, the test still gives judges a lot of discretion. Prof. Hill warns that "A legal test that requires balancing benefits and burdens leaves a lot of room for a judge to place a thumb on the scale." Also of concern is the deference that Trump's Supreme Court nominee Judge Gorsuch shows to religious rights claims as we increasingly see expansion of these claims to undermine laws that protect women and LGBTI individuals from discrimination.
Finally, Professor Hill notes that while the five judges majority in Whole Woman's Health remains on the Court, "the real turning point will likely come if and when Trump gets to make second nomination the Supreme Court."
Thursday, March 23, 2017
Mississippi Drops Defense of Admitting Privilege Requirement; Litigation on OB/GYN Requirement Continues
Rewire (March 21, 2017): Mississippi Finally Stops Defending Clinic Shutdown Law, by Jessica Mason Pieklo:
Eight months after the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, Mississippi dropped its defense of an admitting privilege requirement that would have required doctors performing abortions to have admitting privileges at nearby hospitals. The provision would have forced the only abortion clinic in Mississippi to close. Following the state's concession that it could not "identify any meaningful distinction" between the law struck down in Whole Woman's Health and the Mississippi admitting privilege requirement, the district court permanently enjoined the law.
However, litigation continues over another Mississippi law that requires that all doctors performing abortions be OB-GYNs. Mississippi is the only state with such a requirement.
Tuesday, March 21, 2017
Huffington Post (March 20, 2017): Women Wore 'Handmaid's Tale' Robes to the Texas Senate, by Catherine Pearson:
On Monday, a group of women arrived at the Texas Senate Chambers wearing red robes and white bonnets as a nod to characters in Margaret Atwood's book the Handmaiden's Tale. The science fiction novel describes a society where women are forced to serve as "breeders" with no rights. The activists sought to draw attention to a series of anti-abortion measures that are currently being considered by the Texas legislature. The proposed legislation includes a bill that would ban a procedure commonly used for second trimester abortions and a bill that would immunize doctors from liability if they lie to patients about detected fetal abnormalities.
Saturday, March 18, 2017
New York Times (Dec. 14, 2016): Abortion Is Found to Have Little Effect on Women’s Mental Health, by Pam Belluck:
A new study comparing women who had abortions with those who were turned away at clinics finds that women who have abortions do not experience more negative psychological effects. This finding is contrary to the familiar lore that women who have abortions experience emotional and psychological trauma and thus need mental health counseling before they undergo the procedure. Such counseling is required in twenty-two states. Conservative state legislatures have used this mythos effectively to pass a number of restrictions on abortion.
The study sought to cure some of the methodological failings of previous studies by comparing two groups of women, both of which seek abortions, rather than comparing women who desire an abortion with women who wish to carry their pregnancies to term. The test subjects were followed up every six months for five years. It turns out that women who seek abortions and are refused suffer more than anyone. They experience more anxiety, lower self-esteem, and less satisfaction than women who are able to obtain an abortion. Luckily, their mental distress is short-lived, whether they successfully seek abortion elsewhere or give birth.
Wednesday, March 15, 2017
Spokesman-Review (Boise) (Jan. 23, 2017): Idaho to Stop Enforcing Telemedicine Abortion Bans, by Kimberlee Kruesi:
Two laws hindering women from obtaining safe abortions have been dismantled in Idaho. The first curtailed the use of telemedicine to assist women choosing medical abortions. Telemedicine allows physicians to consult with their patients remotely. It can be especially useful in delivering medical services in rural areas. The law required a physician to be present when a patient receives abortion-inducing medication. The second law simply forbade physicians from prescribing pregnancy-ending drugs remotely.
Planned Parenthood sued Idaho to dismantle these laws. A settlement entered into between the parties requires Idaho to repeal these laws by 2017 or have them declared unconstitutional in federal court. A federal judge has already ruled that requiring a physician's physical presence imposes an undue burden on women seeking medical abortions with no counterbalancing health benefits. A similar restriction was struck down by the Iowa Supreme Court in 2015.
Tuesday, March 14, 2017
New York Times (Feb. 15, 2017): Human Gene Editing Receives Key Panel's Support, by Amy Harmon:
In a move that some fear heralds the era of designer babies for the very wealthy and that has led other countries to ban germ line genetic editing, a panel of influential American scientists has thrown its support behind inheritable modifications of human embryos. Although touted as a way to cure disease, many see the potential for this science to be used for more nefarious motives--enhancing mental or physical endowments, for example--that smack of eugenics.
The research is explicitly aimed at allowing parents who both carry deadly recessive traits to have children who are not afflicted by such diseases as Tay-Sachs, beta thalassemia, and Huntington's. The report calls for prohibitions on using the technology for enhancements, but it does not have any legal effect. Federal law, though, currently prohibits the use of "federal money to support research that results in genetically modified offspring."
The issue arises on the heels of technology--Crispr-Cas9--that brings germ-line genetic editing out of the realm of science fiction. The tool allows researchers to insert and delete genes more or less precisely, although the possibility remains that some DNA will be snipped off inadvertently. They will experiment first on patients with cancer and blindness using genetic alterations that are not inheritable.
Monday, March 13, 2017
New York Times (March 12, 2017), Are Your Sperm in Trouble?, by Nicholas Kristof:
Sperm is decreasing in quality and testicular cancer is on the rise. Studies show a rapid decrease in sperm quality from 2001 to 2015. Some suggest that endocrine disruptors--chemicals found in plastics are to blame. In one study of the effect of endocrine disruptors on fish, the males became intersex and incapable of reproducing.
Human reproduction might be threatened by these developments, but scientists disagree about the scale of the problem. Some believe we are are crossing the line where the question "can we sustain ourselves?" becomes relevant. After all, endocrine disruptors mimic hormones; as such they possess the power to interfere with the biological process of becoming male in the womb.
Some have taken to avoiding plastics, including the ubiquitous sales receipts produced by thermal printers. But individual action is probably not enough. The endocrine disruptor lobby in Congress mirrors the power of Big Tobacco before the regulation of smoking became a foregone conclusion.
Thursday, March 2, 2017
Washington Post (March 2, 2017): Nations pledge millions after US pulls family planning funds, by Raf Casert:
In response to the Trump administration's reinstatement and expansion of the Global Gag Rule, on March 2 nations met in Brussels to determine how to fill the funding gap. Although the conference was convened at the last minute, representatives from over 50 countries attended and funding pledges approached 100 million dollars.
The Global Gag Rule adopted by the Trump administration earlier this year prohibits organizations from receiving US foreign aid funding if they counsel or discuss abortion with patients or advocate for changes in abortion law. Prior versions of the Global Gag Rule only applied to US family planning funding. The new version includes all American global health assistance. It is estimated that the rule could result in the withholding of half a billion dollars of funding a year.
World leaders at the conference expressed concern that Trump's policies will severely undermine access to family planning in developing nations and will actually increase abortions because of the increase in unwanted pregnancies.
Friday, February 24, 2017
National Catholic Reporter (Feb. 21, 2017): El Salvador's proposal to increase jail sentences of women seeking abortions must be rejected, by Natasha Reifenberg, Alexis Doyle and Aly Cox:
Earlier this week El Salvador began debating a proposal that would increase the punishment that women face for having an abortion to 30 to 50 years. El Salvador is one a few countries that both criminalizes and actively prosecutes women who have had, or who are suspected of having, an abortion. Current criminal penalties for women who have abortions are two to eight years, although many women in El Salvador are serving much longer sentences after being accused of murder following miscarriages or stillbirths.
Voto Catolico, a group "committed to increasing participation of Salvadorian Catholics" in politics praised the effort which would place El Salvador "at the forefront of the most pro-life legislation in the entire world." But not all pro-life Catholics agree. This opinion piece in the National Catholic Reporter argues that "drastically increasing the sentencing of women who have sought abortions is neither pro-life nor affirmative of Catholic values." The authors note that
the persons most likely to face actual prosecution under this law are poor women facing crisis pregnancies, which directly contests the church's preferential option for the poor and only serves to further marginalize poor women facing crisis pregnancies receiving care in public hospitals. A truly pro-life society would seek to support and empower impoverished women through increased counseling, education, social services, proper prenatal care, post-abortive healing resources, and support of strong families and supportive fathers.
Although maintaining that abortion is a sin, the authors argue that "[a] law that could incarcerate women who seek abortions for 50 years is not reflective of the church's teachings on mercy and forgiveness and only succeeds in eclipsing everything that has been said in light of the Jubilee Year of Mercy." Pope Francis declared 2016, Jubilee Year of Mercy and emphasized that women who have had abortions and have repented should be forgiven and not punished.
Thursday, February 23, 2017
Washington Post (February 18, 2017): Norma McCorvey, Jane Roe of Roe v. Wade decisions legalizing abortion nationwide dies at 19, by Emily Langer:
Last Saturday, Norma McCorvey who was plaintiff "Jane Roe" in the 1973 case Roe v. Wade died at age 69. Roe v. Wade was a landmark in American jurisprudence and is widely quoted in reproductive rights cases around the world. While the case is widely regarded as a success by reproductive rights activists, McCorvey's life and relationship with the pro-choice movement has been much more complicated.
According to the most sympathetic tellings of her story, she was a victim of abuse, financial hardship, drug and alcohol addiction, and personal frailty. For much of her life, she subsisted at the margins of society, making ends meet, according to various accounts, as a bartender, a maid, a roller-skating carhop and a house painter. She found a measure of stability with a lesbian partner, Connie Gonzalez, but even that relationship reportedly ended in bitterness after 35 years.
In 1995, she converted to Evangelical Christianity and become an anti-abortion activist. According to Emily Langer
But neither did Ms. McCorvey find a comfortable home among conservatives in the antiabortion movement, many of whom regarded lesbianism as immoral.
“Neither side was ever willing to accept her for who she was,” the historian David J. Garrow, a Pulitzer Prize-winning biographer and the author of “Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade,” said in an interview.
Wednesday, February 22, 2017
New York Times (Feb. 21, 2017): Judge Blocks Medicaid Cuts to Planned Parenthood in Texas, by Christopher Mele:
On Tuesday, a federal judge issued a preliminary injunction preventing Texas from defunding Planned Parenthood finding that the state failed to present credible evidence that Planned Parenthood violated medical or ethical standards. The judge's decision was based on a three day hearing last January.
Federal courts have enjoined similar state attempts to defund Planned Parenthood in Arkansas, Alabama, Kansas, Mississippi, and Louisiana. Planned Parenthood operates 30 medical centers Texas that serve about 12,500 Medicaid patients. The Texas law would have prohibited Planned Parenthood from receiving Medicaid reimbursement for services such as screening and treatment of breast and cervical cancer, contraception counseling, testing and treatment for sexually transmitted diseases and primary health care services.
Texas Attorney General Ken Paxton said that he will appeal the injunction.
Tuesday, February 21, 2017
Rewire (Feb. 16, 2017): GOP Begins Shredding Family Planning Safeguards, by Christine Grimaldi:
Using the Congressional Review Act, Republican law makers are working to undo regulations adopted during the Obama administration. Last week the House of Representatives voted to overturn a rule adopted by the Obama Administration that prohibits discrimination against providers of Title X services. If the Senate agrees, their "joint resolution of disapproval" will overturn the rule if President Trump signs it.
Title X is a federal program that provides funding for family planning for low-income or uninsured individuals at reduced or no cost. The rule at issue was adopted by the Department of Health and Human Services in December 2016. The rule sought to clarify that existing law prohibits states from barring reproductive health care providers from receiving Title X funds if they also provide abortion care. The rule was designed to address the recent trend of state laws penalizing reproductive health providers that also provide abortion care by making them ineligible for government funding. In particular the laws target Planned Parenthood which provides services for about a third of the recipients of Title X services.
Republicans assert that overturning the rule will not decrease Title X funding but will allow states to redirect funds to other service providers. However, according to a Rewire analysis, other health care providers are not prepared to fill the gap if Planned Parenthood loses funding.
Assuming that President Trump will sign the measure, overturning the Obama Administration rule will require a simple majority of the Senate - 51 senators. If there is a tie, Vice-President Pence will cast the deciding vote.
Wednesday, February 15, 2017
New York Times (Dec. 11, 2016): Abortion Foes, Emboldened by Trump, Promise "Onslaught" of Tough Restrictions, by Sabrina Tavernise and Sheryl Gay Stolberg:
Ohio has new law that bans abortion after 20 weeks of pregnancy. There is no exception for rape or incest. Ohio is the eighteenth state to adopt the 20-week ban. Federal courts in Arizona and Idaho have struck down similar laws as unconstitutional. The Supreme Court has refused to hear Arizona's appeal.
A more restrictive measure, banning abortion after a fetus has a detectable heartbeat, was vetoed by Governor Kasich. Many believe that the advent of Trump emboldened legislators to vote in favor of the heartbeat bill, despite it having been a perennial failure in the past.
The effects of Mr. Trump’s victory are only beginning to be felt. But one of the biggest changes is playing out in abortion politics. From the composition of the Supreme Court (Mr. Trump has promised to nominate staunchly anti-abortion justices), to efforts on Capitol Hill to enact a permanent ban on taxpayer-financed abortions, to emboldened Republican statehouses like the one in Ohio, combatants on both sides see legalized abortion imperiled as it has not been for decades.
Trump's election follows on a decade of anti-abortion victories throughout the country. Rights-preserving states like New York and California are becoming more the exception than the norm. Anti-abortion groups are mobilizing to harness what they perceive to be an increasingly promising landscape for enacting abortion restrictions. Americans United for Life, for example, recently released a report that purports to chronicle a raft of unsafe conditions in America's abortion clinics. The group hopes the publication will inspire legislatures to pass abortion restrictions in the wake of Whole Woman's Health v. Hellerstedt. In Texas specifically, conservative legislators have promised "'an absolute onslaught of pro-life legislation.'" Four other states have enacted "trigger bans" on abortion that will take effect immediately if Roe v. Wade is overruled.
Before his election, Trump committed in writing to four anti-abortion priorities:
Those priorities include putting anti-abortion justices on the Supreme Court; passing a national 20-week ban like Ohio’s; eliminating federal money for Planned Parenthood as long as its clinics perform abortions; and making permanent the Hyde Amendment, passed annually by Congress to ban taxpayer-funded abortions.
Tuesday, February 14, 2017
(February 14, 2017) The Dutch v. Donald: The Netherlands Lead World's Pro-Choice Battle, by Chelsea Wilson Miller, CUNY Law Student:
Last month, millions of women and allies around the world marched in solidarity for women’s rights. We marched in support of a platform that included the right to ensure reproductive freedom and refusal to accept cuts or restrictions on people’s reproductive rights. We came together on that day and the days since in camaraderie. We protested. We called our representatives. We tweeted.
President Trump has not only ignored our largely unified voices, he’s downright insulted us. Luckily, women around the world, including leaders in foreign governments, are standing up and fighting back.
Only a couple days after beginning his role as President of the United States, Donald J. Trump reinstated and expanded the “Global Gag Rule”, or the Mexico City agreement. Ronald Reagan first introduced the Global Gag Rule in 1984, which originally prevented foreign non-governmental organizations (NGOs) from performing or actively promoting abortion as a method of family planning. The Gag Rule previously restricted funding only to foreign nongovernmental organizations receiving U.S. family-planning assistance, but Trump’s executive action extends the funding restrictions to all American global health assistance (ie. stopping the spread of viruses like HIV or Zika for men and women).
In practice this will mean organizations must choose whether to accept funds and forego counseling their communities, or sacrifice the funds to continue their important work of informing people of their reproductive health options. Everyone expected that Trump would re-instate the Global Gag Rule in the early days of his presidency. But expanding it so massively just 48 hours after the Women’s March of an estimated two million women, is truly offensive. This massive expansion also ignores the fact that U.S. funding (FY2016) prevented an estimated 11,000 maternal deaths and 2 million unsafe abortions last year.
Luckily, the Netherlands and its pro-choice sheroes are leading the battle against Trump’s aggressive actions. In direct response to Trump’s reinstatement of the Global Gag Rule, Lilianne Ploumen, the Dutch Minister for Foreign Trade and Development Co-Operation, created a fundraising website: “She Decides - Global Fundraising Initiative”. The website aims to work as a resource to pick up the large tab that America’s prior leadership in global health assistance left behind. Financial contributions to the Initiative will be made available to organizations that lose funding because of the reinstatement and expansion of the Global Gag Rule. The Dutch government has also committed $10 million to the fund.
Such actions from Dutch female leaders are not new. In 2015, the Dutch pressured the European Union to increase its support of access to safe abortions for women and girls who are raped and impregnated during armed conflict. Member of European Parliament, Sophie in 't Veld, is one of the leaders of an effort to encourage the European Commission to alter its humanitarian aid policies for these women and girls.
In response to those efforts in September of 2015, members of the European Commission recognized the right to abortion for war rape victims. Later that same year, the European Union attached an anti-U.S. Helms Amendment to their 2016 E.U. Budget (The U.S. Helms Amendment, which was enacted in 1973, prohibits American foreign assistance funds for abortion services “as a method of family planning”).
Trump’s reinstatement and expansion of the Global Gag Rule not only creates new barriers to victims who wish to receive counseling about abortions, it could have a devastating impact on the health of women and girls in poor countries around the world. Because many health care organizations cannot or will not certify that their health care workers will not discuss abortion, they will be forced to forgo U.S. funding. Luckily, the Dutch are on the offensive. Their swift reaction to address Trump’s actions will hopefully meet organizations’ added burdens. Additionally, the Netherlands’ continued effort to lobby the E.U. to increase support for similar programs for war-rape victims is worthy of recognition by the world.
To the Dutch leaders leading the battle for women’s rights to choose, we thank you. Millions of people worldwide marched to demand the stop of family-planning funding cuts, and the Dutch government wasted no time in taking concrete action.
Women, especially those who are raped in war, do not have to rely on the whims of the U.S. government to receive the necessary medical care they need. Both in the political battlefield and in the aftermath of the real battlefields throughout the world, the Netherlands has demonstrated that they’re truly fighting for women worldwide.
Monday, February 13, 2017
New York Times (Feb. 7, 2017): Reading Between the Lines for a Nominee's Views on Abortion, by Adam Liptak:
Neil Gorsuch's 2006 book The Future of Assisted Suicide and Euthanasia (New Forum Books) may provide a window onto the nominee's views on abortion. In the book, Gorsuch canvasses the Supreme Court's abortion jurisprudence for clues about whether a right to assisted suicide exists. He concludes that it does not, because "human life is a good in itself."
The learned tome does not critique the Supreme Court's abortion jurisprudence per se and reveals nothing about where Gorsuch stands on Roe v. Wade. It likewise leaves unclear whether Gorsuch's perspective on human life would lead him to conclude that a fetus is a human life. In his 2006 confirmation hearing following his nomination to the federal bench, Gorsuch remarked that his personal views have no effect on his judicial work and that his writings defend existing law "'in most places.'"
Gorsuch does, however, acknowledges that jurists he respects hold views contrary to existing law. This is most notably true of his former employer Byron White, for whom Gorsuch was a law clerk in the early 1990s. In dissent in the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, White notoriously called for the overruling of Roe v. Wade:
However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.
White's analysis was mercilessly skewered in the concurrence of Justice John Paul Stevens, though the perennially judicious Stevens was careful to remark, "I have always had the highest respect for his views on this subject."
Perhaps more telling than Gorsuch's views on Roe v. Wade, which remain unknown, are his views on Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which The Future of Assisted Suicide and Euthanasia argues should be "read narrowly." Gorsuch objects to the use of the "flowery" language in the decision invoking "the mystery of life." Like White before him, who favored limiting, nay, overruling Roe, Gorsuch favors cabining Casey within the confines of a "stare decisis decision," in other words one that merely pays deference to settled law. But saying one is devoted to upholding settled law is not the same thing as saying that a right should not have been declared fundamental in the first place. The possibility that Gorsuch might be tempted to channel Bryon White in saying so lies well within the realm of possibility.
Friday, February 10, 2017
New York Times (Nov. 10, 2016): A Study Tests the Safety of Women Using Abortion Pills Sent by Mail, by Phil Galewitz:
The idea of giving more women access to abortion care by delivering medication through the mail without an in-person visit to a physician is an idea grounded helping women obtain birth control more easily. "Australia and the Canadian province of British Columbia allow women to get abortion pills by mail after consulting with a physician or other health care provider via phone or the internet. Several international organizations offer mail service in countries where abortion is otherwise unavailable or severely restricted." There is no such service in the United States. The Food and Drug Administration prohibits pharmacies from filling prescriptions for the most common medical abortifacient mifepristone. It must be procured directly from a clinic that stocks the drug.
A research effort permitted by the Food and Drug Administration is being conducted in Hawaii, New York, Oregon and Washington to evaluate the safety of medical abortion by mail. 91% of women surveyed reported that they did not have any complications and would recommend the service to a friend. Women who use telemedicine and receive abortion medication by mail report a great sense of well being having control over the abortion decision and being able to conduct a medical abortion on their own time and in the privacy of their own home.
Abortion foes, who have been up in arms about the mail-order medical abortion experiment, have raised a hue and cry over its safety. Of course, the mail-order alternative does not entirely remove doctors and nurses from the equation. A woman who wishes to receive abortion medication by mail must first consult with a physician and submit to an ultrasound and blood work. Follow-up care includes an ultrasound to confirm that the abortion is complete a phone consultation to go over the results.
Even if the study supports wider access to abortion via telemedicine, nineteen states nonetheless ban the method, requiring a physician to be physically present when consulting with a women on abortion.
Thursday, February 9, 2017
[Cross posted on Human Rights at Home Blog: Feb. 8, 2017] Human Rights Experts Find That Detention of Pregnant Women Violates Human Rights, by Megan Lynch:
In August 2014, a Wisconsin woman named Tammy Loerscher went to her local services agency because she believed that she was pregnant, but had serious medical conditions and could not afford health care. She was referred to the emergency room of a nearby hospital, where her urine was collected to test for pregnancy and for controlled substances. When the results returned “unconfirmed positive,” she was reported to child protective authorities. A temporary order of custody was issued to detain Tammy in the hospital. The next day a hearing was held over the phone. There was a lawyer representing the child protective agency, and a legal guardian to represent Tammy’s fetus, but Tammy herself was not given a lawyer, and the judge refused to delay the hearing to permit Tammy to find one. The judge ordered her to report to an inpatient treatment facility after being discharged from the hospital. No assessment was ever completed as to whether Tammy had a substance use disorder or needed inpatient treatment. When Tammy refused to enter inpatient treatment, she was ordered to serve 30 days in jail. While incarcerated she was denied medical care, held in solitary confinement, and threatened to be tased. Tammy was released after 18 days in jail subject to drug monitoring for the duration of her pregnancy. All subsequent drug tests were negative.
Last October, Tammy told her story to Seong-Phil Hong of the United Nations Working Group on Arbitrary Detention during the Working Group’s visit to the United States. An expert on arbitrary detention, Mr. Hong recognized that Wisconsin’s actions violated Tammy’s human rights and that there are better ways for the state to address concerns about fetal health. Late last year, the Working Group issued a statement emphasizing that confinement of pregnant women suspected of drug is inappropriate and that involuntary detention should be used only as a last resort, for the shortest period of time needed, and with appropriate due process protections. The group emphasized that “confinement should be replaced with alternative measures that protect women without jeopardizing their liberty.”
Despite the Working Group’s statement, every year, hundreds of pregnant women are involuntarily detained in the United States because they are suspected of drug use. Wisconsin is one of 5 states with laws that permit pregnant women to be detained for the supposed benefit of a fetus. These statutes were designed in the 1990s amid fears of the effects of in utero exposure to cocaine. Despite decades of research undercutting the belief that use of criminalized drugs is certainly and uniquely harmful to fetal health, these laws continue to be used to issue protective custody orders against pregnant women.
In addition to lacking scientific basis, laws that punish people who use drugs during pregnancy threaten the public health. As the American College of Obstetricians and Gynecologists has stated: “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” Instead, threats of arrest and incarceration harm fetal and maternal health because they discourage women from seeking medical advice and prenatal care. The medical community in the United States and around the world universally condemn punitive approaches, recommending support and voluntary treatment where appropriate.
Not only do these laws harm the people they purport to protect, they also violate women’s fundamental human rights. Detaining pregnant women based on suspected drug use unfairly deprives them of liberty based on their pregnancy status. While civil commitment is permitted under U.S. law, the laws used to detain pregnant women lack the stringent standards required for civil commitment in other contexts, including a risk of imminent harm and due process protections. These statutes set no requirement that the state prove that a woman has a substance use disorder, or that the substance she is alleged to use is harmful to fetal development before detaining her. Nor do they require that the state consider alternative, less invasive measures before authorizing involuntary confinement. Rather, in most cases, simply testing positive for a drug is grounds for confinement in a treatment facility, regardless of whether it is medically appropriate.
Even if state intervention could be justified under extreme circumstances, these overbroad laws fail to provide adequate procedural protections. Indeed, in Wisconsin, a woman is not entitled to an attorney until appeal, even if she explicitly requests one. Further, the proceedings are sealed, closed proceedings, preventing public scrutiny of the process. This places the onus on women who have undergone this process to come forward to tell their stories.
The UN Working Group made clear that these laws run contrary one of the most fundamental rights under international law: the right to liberty and to be free from arbitrary detention. The right to liberty is deeply embedded in the American psyche, dating back to our nation’s birth and the Declaration of Independence’s promise of the right to life, liberty and the pursuit of happiness. The right to liberty would later be emphasized in the UN Declaration of Human Rights, and the US reaffirmed its commitment to liberty and freedom from arbitrary detention when it ratified the International Convention on Civil and Political Rights.
Because freedom from arbitrary detention is a fundamental right, international human rights standards require that individuals only be detained as a last resort, for the shortest period of time needed, and with appropriate due process protections. Any use of detention must be necessary and proportionate. According to the Working Group, Wisconsin’s law failed to meet these standards.
The Working Group’s recognition that detaining pregnant women suspected of drug use violates their human rights, and the widespread agreement that this practice actually threatens maternal and infant health, should be a call to reconsider our approach to substance use in pregnancy. Instead of spending money on counterproductive punishment and coercive treatment, we should ensure that women like Tammy are able to trust that the people they turn to will provide help, not handcuffs.
New York Times (Jan. 27, 2017): Duterte’s Free Birth-Control Order Is Latest Skirmish With Catholic Church, by Aurora Almendral:
The Philippines, where six million women have no access to contraceptives, delivers free birth control to indigent women through a program that also offers prenatal care and mandates that sex education be taught in schools and that companies provide reproductive health services to their employees. The program has been billed as "pro-life, pro-women, pro-children and pro-economic development."
But the Catholic Church has long fought the implementation of the program, going so far as to block key components of it via petitions filed in the Supreme Court. Unable to implement the program, the Health Department's budget has been slashed. Sex education in schools remains substandard, based in abstinence-only rhetoric. The Philippines is the only country in Asia where rates of pregnancy among teenagers increased.
President Duterte's administration is coming back strong against the court's decisions, vowing to uphold the law and eliminating some of the decisions' ambiguous wording. Two archbishops have acknowledged defeat.
One commentator, contrasting Duterte's clash with the church with President Donald Trump's reinstatement of the Reagan-era global "gag rule" forbidding foreign NGOs from receiving U.S. family planning funds if they perform, counsel or refer women for abortion services or advocate for the liberalization of abortion laws where they work, sees the policy of the United States, not the Philippines, as the real threat to women's health.
Saturday, February 4, 2017
Rewire (Feb. 3, 2017): How Nikki Haley's Ambassador Appointment Threatens the Spirit and Intent of the UN, by Gillian Kane:
When Nikki Haley was appointed UN Ambassador, it was clear that she would seek to export her anti-choice ideology to other countries. What was less clear was the broader threat that she and the Trump administration would be to the UN and its human rights infrastructure.
Presenting her credentials to the UN last week in New York, Haley issued brief introductory remarks—or, more accurately, she issued a general’s salvo of war: “For those who don’t have our back, we’re taking names, we will make points to respond to that accordingly.” This swagger, we now know, is a hallmark of the Trump administration. But a bullish entry into the halls of the United Nations is cause for alarm, especially for nations and advocates concerned with women’s rights.
In addition to reinstating and expanding the global gag rule, the Trump administration has signaled plans to significantly reduce the U.S.'s contribution to the UN. In 2015, the U.S. was the UN's largest contributor and provided 22% of its budget. It's funding decisions appear to be driven by ideology, with threats to defunding tied to agencies that "oppose important U.S. policies." Not only is it problematic to tie funding to political goals, many of the Trump administration's goals may be to rollback important human rights protections.
To be clear, the work of the UN on human rights is fragile and constantly under threat. Defending and promoting women’s rights and LGBTQ rights with 193 member states is always a fraught process. Still, under President Barack Obama, the United States, often in coalition with other progressive countries, was a forceful voice to counter conservative nations who would argue that female genital cutting, or discrimination against gay people, was their cultural prerogative. Haley’s positions on women’s rights, and her hostile attitude toward the UN, are a disturbing break from her immediate predecessor, Samantha Power. Power, who while notably silent on abortion, was outspoken on LGBTQ and women’s rights, and a strong advocate of the United States’ active engagement in the UN.
Wednesday, February 1, 2017
NY Magazine (Feb. 1, 2017): What Trump's Supreme Court Nominee Neil Gorsush Could Mean For Women's Health, by Lisa Ryan:
Immediately after President Trump's announcement of 10th Circuit Court of Appeals Judge Neil Gorsuch as his Supreme Court nominee on Tuesday, commentators started speculating what this means for women's health. The intense interest on both side of the political spectrum is not surprising given that Trump made campaign promises that he would appoint a pro-life justice who would help to repeal Roe v. Wade.
However, Judge Gorsuch has never issued a decision on abortion, leaving commentators to speculate on his views based on his decisions and writing on other issues. Emma Green of the Atlantic analyzes Judge's Gorsuch's book on assisted suicide, which discusses Planned Parenthood v. Casey. However, she concludes that the book does not reveal a clear position on whether he would vote to repeal Roe v. Wade.
But, Judge Gorsuch's broad conception of the right to religious freedom may pose a more immediate threat to reproductive rights. Ed Kilgore of New York Magazine writes:
But the key reason for conservative enthusiasm about Gorsuch is that he has been a real judicial pioneer in recognizing and expanding the right to an exemption from anti-discrimination laws and regulations for those citing religious objections. He was involved in two Tenth Circuit cases that wound up producing SCOTUS landmark decisions that allowed religious believers (include those running for-profit businesses) to disregard the contraception-coverage provisions of Obamacare.
For those interested in taking a deeper look into Judge Gorsuch's writings SCOTUS Blog has compiled his extrajudicial writing and speeches.